/raid1/www/Hosts/bankrupt/CAR_Public/231215.mbx
C L A S S A C T I O N R E P O R T E R
Friday, December 15, 2023, Vol. 25, No. 251
Headlines
2255 EMMONS CAFE: Martin Files ADA Suit in E.D. New York
23ANDME INC: Fralix Files Suit in N.D. California
23ANDME INC: Vickery Sues Over Inadequate Data Security Practices
AARC LLC: Nicholas Suit Removed to S.D. California
ADVANCED CALL CENTER: Villegas Files Suit in Cal. Super. Ct.
AHAVA MEDICAL: Sanchez Files ADA Suit in E.D. New York
ALIGHT SOLUTIONS: Rogers Sues Over Unpaid Overtime Wages
ALIGN TECHNOLOGY: Bids for Class Cert in Snow Suit Partly Granted
ALIGN TECHNOLOGY: Simon & Simon Partly Gets Class Cert Bid
ALTUS DIRECT: Progressive Has Leave to File 2nd Amended Complaint
APPLE INC: Filing for Class Cert Bid Modified to March 15, 2024
ATRIUS HEALTH INC: Suit Filed in Mass. Super. Ct.
GENERAL MOTORS: Seeks Dismissal of Driver's Class Action
LIBERTY MUTUAL: Court Allows Bid to Dismiss in Wellness Suit
MARTINEZ REFINERY: Faces Class Action Suit Over Public Nuisance
MATTERPORT INC: Bid for Summary Judgment in Lynch Suit Granted
MERCK SHARP: E.D. Pennsylvania Narrows Claims in Baltimore Suit
OSANA CLEANING: Loses Bid for Protective Order in Velasquez Suit
PENNSYLVANIA: Court Grants Partial Bid to Dismiss Houser v. Faubert
RESCARE INC: Dispositional Document in Diaz Suit Due on March 29
SAFECO INSURANCE: Gilbert Suit Removed to N.D. Ohio
SAINT EDWARDS UNIVERSITY: Bishop Files ADA Suit in S.D. New York
SCISSORTAIL ENERGY: Filing for Class Cert. Bid Due May 23, 2024
SCL GRILL LLC: Stroude Files ADA Suit in E.D. New York
SEAWORLD PARKS: Burns Suit Seeks to Certify Minority Persons Class
SEAWORLD PARKS: Coppel Class Cert Reply Extended to Jan. 24, 2024
SEAWORLD PARKS: Plaintiffs Seek More Time to File Class Cert Bid
SECURITY CREDIT: Neiman Files FDCPA Suit in S.D. New York
SIMM ASSOCIATES: Greene Files FDCPA Suit in S.D. California
TIKTOK INC: Court Issues Ruling on Third Party Funding Agreements
UNITED PARCEL: Court Grants Bid for Summary Judgment in Baker Suit
UNITED STATES: Court Approves Class Settlement in Campos v. SSA
VANGUARD CHESTER: Bids to Dismiss in Funds Litigation OK'd in Part
[*] Child & Family Services Agencies in Canada Sued Over Adoptions
Asbestos Litigation
ASBESTOS UPDATE: Court Rules Merck Responsible in Talc Lawsuits
ASBESTOS UPDATE: J&J Weighs 3rd Bankruptcy Attempt on Talc Claims
*********
2255 EMMONS CAFE: Martin Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against 2255 Emmons Cafe
Lounge, Inc. The case is styled as Damian Martin, on behalf of
himself and all others similarly situated v. 2255 Emmons Cafe
Lounge, Inc., Case No. 1:23-cv-08818 (E.D.N.Y., Nov. 30, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
2255 Emmons Cafe Lounge, Inc. -- https://www.operacafelounge.com/
-- is a stylish, contemporary restaurant & lounge offering Turkish
cuisine, specialty cocktails & wine.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
23ANDME INC: Fralix Files Suit in N.D. California
-------------------------------------------------
A class action lawsuit has been filed against 23andMe, Inc. The
case is styled as Elaine Fralix, individually and on behalf of all
others similarly situated v. 23andMe, Inc., Case No.
3:23-cv-05439-EMC (N.D. Cal., Oct. 23, 2023).
The nature of suit is as Other Contract for Contract Dispute.
23andMe -- https://www.23andme.com/ -- offers DNA testing with the
most comprehensive ancestry breakdown, personalized health insights
and more.[BN]
The Plaintiffs are represented by:
Eric Marc Poulin, Esq.
POULIN WILLEY ANASTOPOULO LLC
32 Ann Street
Charleston, SC 29403
Phone: (803) 222-2222
Fax: (843) 494-5536
Email: eric.poulin@poulinwilley.com
23ANDME INC: Vickery Sues Over Inadequate Data Security Practices
-----------------------------------------------------------------
Thomas Vickery, individually and on behalf of all others similarly
situated v. 23ANDME, INC., Case No. 3:23-cv-05635-RFL (N.D. Cal.,
Oct. 31, 2023), is brought seeking to hold Defendant responsible
for the harm it has caused and will continue to cause to Plaintiff
and millions of other similarly situated person as a result of
Defendant's inadequate data security policies and practices, which
allowed unidentified third parties to download and sell
extraordinarily targeted and sensitive personally identifiable
information (PII) of Plaintiff and other class members on the Dark
Web, including their names, cities and states of residence,
genders, years of birth, 23andMe account information, as well as
detailed information about Plaintiff and Class Members' genomics,
DNA profile, and information about their ancestry and ethnicity
(the "Data Breach").
While Defendant has publicly stated that the Data Breach was a
result of compromised user credentials whereby attackers gained
access to data through passwords that users had reused from other
websites that were hacked, that explanation is only a fraction of
the story. There should have been no way for any unauthorized third
parties to be able to download the sensitive PII of any individuals
without being detected and stopped. However, Defendant allowed the
sensitive PII of millions of users to be downloaded and offered for
sale on a Dark Web hacker forum all without Defendant ever
detecting this activity. Indeed, Defendant clearly had no security
policies or practices in place to detect or stop this Data Breach
from occurring.
Moreover, Defendant specifically informed prospective customers
that "your personally identifiable information (such as your name
and email) is stored in in [sic] a separate database from your
genetic data so that no one but you (when you use your username and
password) can connect the dots between the two" and that, as a
result, "even if someone gained access to one of these databases,
they could not connect your identity to your genetic data, or vice
versa.
Indeed, the Data Breach shows these representations to be false.
The hacker(s) here were not only able to access genetic and genomic
data for millions of people but, were also able to associate this
stolen sensitive PII with the names, years of birth, cities and
states of residence, genders, and 23andMe account information of
these affected individuals, says the complaint.
The Plaintiff is a resident of Virginia and has been a 23andMe
customer since July 2023.
The Defendant is a consumer genetics company founded with the
mission "to help people access, understand, and benefit from the
human genome."[BN]
The Plaintiff is a represented by:
Rachele R. Byrd, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
750 B Street, Suite 1820
San Diego, CA 92101
Phone: (619) 239-4599
Facsimile: (619) 234-4599
Email: byrd@whafh.com
- and -
Jon Tostrud, Esq.
TOSTRUD LAW GROUP, PC
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Phone: 310/278-2600
Facsimile: 310/278-2640
Email: jtostrud@tostrudlaw.com
AARC LLC: Nicholas Suit Removed to S.D. California
--------------------------------------------------
The case captioned as Melvin Nicholas, individually and on behalf
of all others similarly situated v. AARC, LLC d/b/a Advance America
and DOES 1 through 10, inclusive, Case No. A-23-878058-C was
removed from the Eighth Judicial District Court of the State of
Nevada for Clark County, to the U.S. District Court for the
District of Nevada on Oct. 19, 2023, and assigned Case No.
6:23-cv-05371-DCC.
The Complaint alleges four causes of action: negligence; invasion
of privacy; breach of contract; and breach of implied
contract.[BN]
The Plaintiff is represented by:
Michael Kind, Esq.
KIND LAW
8660 South Maryland Parkway, Suite 106
Las Vegas, NV
Email: mk@kindlaw.com
The Defendants are represented by:
J. Colby Williams, Esq.
Philip R. Erwin, Esq.
CAMPBELL & WILLIAMS
710 South Seventh Street
Las Vegas, NV 89101
Phone: 702.382.5222
Email: jcw@cwlawlv.com
pre@cwlawlv.com
ADVANCED CALL CENTER: Villegas Files Suit in Cal. Super. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Advanced Call Center
Technologies, LLC, et al. The case is styled as Julianna Villegas,
and on behalf of other members of the general public similarly
situated v. Advanced Call Center Technologies, LLC, et al., Case
No. 23CV010856 (Cal. Super. Ct., Sacramento Cty., Oct. 30, 2023).
Advanced Call Center Technologies provides of contact center and
back office support services, providing solutions.[BN]
AHAVA MEDICAL: Sanchez Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Ahava Medical &
Rehabilitation Center, LLC. The case is styled as Randy Sanchez, on
behalf of himself and all others similarly situated v. Ahava
Medical & Rehabilitation Center, LLC, Case No. 1:23-cv-08824
(E.D.N.Y., Nov. 30, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ahava Medical & Rehabilitation Center, LLC --
https://ahavamedical.com/ -- provide general and pediatric
dentistry, implants, and surgery.[BN]
The Plaintiff is represented by:
Noor H. Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
ALIGHT SOLUTIONS: Rogers Sues Over Unpaid Overtime Wages
--------------------------------------------------------
Sonya Williams Rogers, individually, and on behalf of all others
similarly situated v. ALIGHT SOLUTIONS LLC, Case No. 1:23-cv-16387
(N.D. Ill., Nov. 30, 2023), is brought to recover unpaid wages,
unpaid overtime wages, liquidated damages, and reasonable
attorneys' fees and costs as a result of Defendants' willful
violations of the Fair Labor Standards Act ("FLSA") and the North
Carolina Wage and Hour Act ("NCWHA").
The Plaintiff typically worked 5 days per week, Monday through
Friday. the Plaintiff regularly worked more than 40 hours in a
workweek and was not paid for all hours worked in such weeks as a
result of the violations. The Defendant failed to pay call center
agents for their time spent starting up their computers, logging
into required systems and applications, and reviewing work-related
e-mails and other information, before their shifts, upon returning
from their meal breaks, and after their shifts, including time
worked in excess of 40 hours in a workweek, says the complaint.
The Plaintiff was employed by Defendant as call center agent.
The Defendant provides customer service outsourcing
telecommunication services.[BN]
The Plaintiff is represented by:
Jason T. Brown, Esq.
Nicholas Conlon, Esq.
Edmund C. Celiesius, Esq.
BROWN, LLC
205 North Michigan Avenue, Suite 810
Chicago, IL 60601
Phone: (877) 561-0000
Fax: (855) 582-5279
Email: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
ed.celiesius@jtblawgroup.com
ALIGN TECHNOLOGY: Bids for Class Cert in Snow Suit Partly Granted
-----------------------------------------------------------------
In the class action lawsuit captioned as MISTY SNOW, et al., v.
ALIGN TECHNOLOGY, INC., Case No. 3:21-cv-03269-VC (N.D. Cal.), the
Hon. Judge Vince Chhabria entered an order:
-- Granting in part and denying in part the motions for class
certification; and
-- Denying motions to exclude Dr. Singer and Dr. Vogt.
In light of the foregoing, the following classes are certified:
-- Direct Purchasers Class
"All persons or entities in the United States that purchased
Invisalign Aligners directly from Defendant Align Technology,
Inc. during the period beginning January 1, 2019 through
March
31, 2023."
Excluded from the Class are: (1) Defendant, its
subsidiaries,
affiliate entities, and employees; and (2) all federal or
state
government entities or agencies.
-- Nationwide Injunctive Relief Indirect Purchaser Class
"All persons or entities in the United States that purchase,
pay, and/or provide reimbursement for some or all of the
purchase price for Invisalign aligners acquired for personal
use, until such time as the anticompetitive conduct alleged
herein has ceased."
Excluded from the Class are: (1) Defendant, its subsidiaries,
affiliate entities, and employees; and (2) all federal or
state
government entities or agencies.
-- State Indirect Purchaser Classes
"All persons that purchased, paid and/or provided
reimbursement
for some or all of the purchase price for Invisalign
Treatments
that used any of the following types of Invisalign products
–
"Comprehensive", "Moderate", "GO", "Teen", "Assist Product
Tracking", "Lite", "Express Ten", "Multi-stage
Comprehensive",
or "Assist" treatment—while residing in a relevant state,
acquired for personal use during the period beginning July 1,
2018 until such time as the anticompetitive conduct alleged
herein has ceased."
The relevant states are: Arizona, California, Maryland,
Massachusetts, Michigan, Minnesota, Nebraska, Nevada, North
Carolina, and Oregon. Excluded from the Class are: (1)
insurance
providers; (2) Defendant, its subsidiaries, affiliate
entities,
and employees; and (3) all federal or state government
entities
or agencies.
Align is an American manufacturer of 3D digital scanners and
Invisalign clear aligners used in orthodontics.
A copy of the Court's order dated Nov. 29, 2023 is available from
PacerMonitor.com at https://bit.ly/3uNjLTA at no extra charge.[CC]
ALIGN TECHNOLOGY: Simon & Simon Partly Gets Class Cert Bid
----------------------------------------------------------
In the class action lawsuit captioned as SIMON AND SIMON, PC, et
al., v. ALIGN TECHNOLOGY, INC., Case No. 3:20-cv-03754-VC (N.D.
Cal.), the Hon. Judge Vince Chhabria entered an order:
-- Granting in part and denying in part the motions for class
certification; and
-- Denying motions to exclude Dr. Singer and Dr. Vogt.
In light of the foregoing, the following classes are certified:
-- Direct Purchasers Class
"All persons or entities in the United States that purchased
Invisalign Aligners directly from Defendant Align Technology,
Inc. during the period beginning January 1, 2019 through
March
31, 2023."
Excluded from the Class are: (1) Defendant, its
subsidiaries,
affiliate entities, and employees; and (2) all federal or
state
government entities or agencies.
-- Nationwide Injunctive Relief Indirect Purchaser Class
"All persons or entities in the United States that purchase,
pay, and/or provide reimbursement for some or all of the
purchase price for Invisalign aligners acquired for personal
use, until such time as the anticompetitive conduct alleged
herein has ceased."
Excluded from the Class are: (1) Defendant, its subsidiaries,
affiliate entities, and employees; and (2) all federal or
state
government entities or agencies.
-- State Indirect Purchaser Classes
"All persons that purchased, paid and/or provided
reimbursement
for some or all of the purchase price for Invisalign
Treatments
that used any of the following types of Invisalign products
–
"Comprehensive", "Moderate", "GO", "Teen", "Assist Product
Tracking", "Lite", "Express Ten", "Multi-stage
Comprehensive",
or "Assist" treatment—while residing in a relevant state,
acquired for personal use during the period beginning July 1,
2018 until such time as the anticompetitive conduct alleged
herein has ceased."
The relevant states are: Arizona, California, Maryland,
Massachusetts, Michigan, Minnesota, Nebraska, Nevada, North
Carolina, and Oregon. Excluded from the Class are: (1)
insurance
providers; (2) Defendant, its subsidiaries, affiliate
entities,
and employees; and (3) all federal or state government
entities
or agencies.
Align is an American manufacturer of 3D digital scanners and
Invisalign clear aligners used in orthodontics.
A copy of the Court's order dated Nov. 29, 2023 is available from
PacerMonitor.com at https://bit.ly/47MZQCU at no extra charge.[CC]
ALTUS DIRECT: Progressive Has Leave to File 2nd Amended Complaint
-----------------------------------------------------------------
Magistrate Judge Elizabeth P. Deavers of the U.S. District Court
for the Southern District of Ohio, Eastern Division, grants the
Plaintiff's Motion for Leave to File a Second Amended Complaint in
the lawsuit entitled PROGRESSIVE HEALTH AND REHAB CORP., Plaintiff
v. ALTUS DIRECT HEALTHCARE, LLC, Defendant, Case No.
2:23-cv-01936-ALM-EPD (S.D. Ohio).
The Plaintiff originally filed its purported Class Action Complaint
on June 12, 2023, alleging that Defendant Altus had violated the
Telephone Consumer Protection Act of 1991, as amended by the Junk
Fax Prevention Act of 2005, 47 USC Section 227 ("TCPA").
On Aug. 3, 2023, the Plaintiff filed a First Amended Class Action
Complaint naming Rashid as an additional Defendant. The Defendants
filed a Motion to Dismiss directed to the First Amended Class
Action Complaint on Sept. 25, 2023.
The Plaintiff now seeks to file a Second Amended Complaint,
explaining its intention to add allegations inadvertently omitted
from its First Amended Complaint concerning Defendant Rashid's
involvement in the fax advertising campaign. The Defendants object
to the filing of the Second Amended Complaint on the basis of
futility, contending that the Plaintiff's proposed additional
allegations are speculative and conclusory.
Relatedly, the Defendants contend that the Plaintiff lacks any good
faith basis for asserting Defendant Rashid's personal involvement
in Altus's alleged TCPA violations such that the proposed amendment
has been brought in bad faith. The Defendants have attached to
their Response Defendant Rashid's Declaration explaining his lack
of responsibility for Altus's marketing activities.
Because denying a motion for leave to amend on grounds that the
proposed new claim is legally insufficient is, at least indirectly,
a ruling on the merits of that claim, the Court has recognized the
"conceptual difficulty presented" when a Magistrate Judge, who
cannot by statute ordinarily rule on a motion to dismiss, is ruling
on such a motion.
In light of this procedural impediment, the Court concludes that
the better course is to permit the Plaintiff to file its Second
Amended Complaint under Rule 15's liberal standard, with the
understanding that the Defendants are free to challenge the
Plaintiff's claims by way of a motion to dismiss.
This remains so despite the Defendants' related argument that the
proposed amendment has been brought in bad faith, Judge Deavers
says. As noted, Rashid previously was added as a Defendant by
operation of the Plaintiff's First Amended Complaint filed on Aug.
3, 2023. As further noted, the Defendants have moved to dismiss the
First Amended Complaint as to Defendant Rashid for failure to state
a claim, raising similar arguments to those raised in its Response
here.
Under the circumstances, Judge Deavers says this related challenge
also is better left for consideration by the District Judge in the
context of a renewed motion to dismiss.
Accordingly, for good cause shown, Judge Deavers holds that the
Plaintiff's Motion for Leave to File a Second Amended Complaint is
granted pursuant to Federal Rule of Civil Procedure 15. The Clerk
is directed to detach and file the Second Amended Complaint
attached to the Motion.
A full-text copy of the Court's Opinion and Order dated Nov. 20,
2023, is available at https://tinyurl.com/mrxawaxz from
PacerMonitor.com.
APPLE INC: Filing for Class Cert Bid Modified to March 15, 2024
---------------------------------------------------------------
In the class action lawsuit captioned as FUMIKO LOPEZ, FUMIKO
LOPEZ, as guardian of A.L., a minor, LISHOMWA HENRY, JOSEPH HARMS,
JOHN TROY PAPPAS, and DAVID YACUBIAN individually and on behalf of
all others similarly situated, v. APPLE INC., Case No.
4:19-cv-04577-JSW (N.D. Cal.), the Hon. Judge Jeffrey S. White
entered an order modifying case management schedule as follows:
Event Current Proposed
Deadlines Deadlines
Motion for Class Certification Dec. 15, 2023 March 15,
2024
Apple's Deadline to Serve Expert Feb. 9, 2024 May 3,
2024
Reports in Opposition to Class
Certification
Opposition to Motion for Class Feb. 23, 2024 May 17,
2024
Certification
Plaintiffs' Reply in Support of April 12, 2024 July 3,
2024
Class Certification and Deadline
to Serve Rebuttal Expert Reports,
if any
Last Day to Complete Mediation March 8, 2024 June 7,
2024
Hearing regarding Class May 3, 2024 July 26,
2024
Certification
Apple is an American multinational technology company headquartered
in Cupertino, California.
A copy of the Court's order dated Nov. 29, 2023 is available from
PacerMonitor.com at https://bit.ly/3Rcjxgb at no extra charge.[CC]
The Plaintiffs are represented by:
Erin Green Comite, Esq.
Joseph P. Guglielmo, Esq.
John T. Jasnoch, Esq.
Hal D. Cunningham, Esq.
Sean C. Russell, Esq.
Victoria L. Burke, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169-1820
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: ecomite@scott-scott.com
jguglielmo@scott-scott.com
jjasnoch@scott-scott.com
hcunningham@scott-scott.com
srussell@scott-scott.com
vburke@scott-scott.com
- and -
Vincent Briganti, Esq.
Christian Levis, Esq.
Andrea Farah, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: vbriganti@lowey.com
clevis@lowey.com
afarah@lowey.com
- and -
Mark N. Todzo, Esq.
Patrick Carey, Esq.
LEXINGTON LAW GROUP
503 Divisadero Street
San Francisco, CA 94117
Telephone: (415) 913-7800
Facsimile: (415) 759-4112
E-mail: mtodzo@lexlawgroup.com
pcarey@lexlawgroup.com
- and -
E. Kirk Wood, Esq.
WOOD LAW FIRM
Birmingham, AL 35238
Telephone: (205) 612-0243
E-mail: kirk@woodlawfirmllc.com
The Defendant is represented by:
Isabelle Ord, Esq.
Raj N. Shah, Esq.
Eric M. Roberts, Esq.
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105-2933
Telephone: (415) 836-2500
Facsimile: (415) 836-2501
E-mail: isabelle.ord@dlapiper.com
raj.shah@dlapiper.com
eric.roberts@dlapiper.com
ATRIUS HEALTH INC: Suit Filed in Mass. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Atrius Health Inc.
The case is styled as John Doe, Jane Doe, individually and on
behalf of All Others Similarly Situated v. Atrius Health Inc., Case
No. 2384CV02704 (Mass. Super. Ct., Suffolk Cty., Nov. 28, 2023).
The case type is stated as "Torts for Other Tortious Action."
Atrius Health -- https://www.atriushealth.org/ -- provides
high-quality, patient-centered, coordinated, cost-effective care to
every patient we serve.[BN]
The Plaintiff is represented by:
Sara Campbell Aguiniga, Esq.
Nathan B. Dravillas, Esq.
Alex J. Gustafson, Esq.
Carl J. Johnson, Esq.
Foster C. Kenney, Esq.
Justin C. Ahmad, Esq.
ZAVITSANOS MENSING PLLC
1221 McKinney St Suite 2500
Houston, TX 77010
- and -
Erin E. McHugh, Esq.
Jonathan Tucker Merrigan, Esq.
Victoria M. Santoro, Esq.
SWEENEY MERRIGAN LAW, LLP
268 Summer St
Boston, MA 02210
The Defendant is represented by:
Adam Cooke, Esq.
Maria R. Durant, Esq.
Anthony E. Fuller, Esq.
Kayla H. Ghantous, Esq.
HOGAN LOVELLS US LLP
555 Thirteenth St. NW Columbia Square
Washington, DC 20004
GENERAL MOTORS: Seeks Dismissal of Driver's Class Action
--------------------------------------------------------
Ryan Harroff, writing for Law360, reports that General Motors LLC
asked an Ohio federal judge to throw out a driver's class action
claims alleging the automaker knowingly sold vehicles with engines
that consume excess oil and wear out piston rings too soon, arguing
there is no evidence her car even has the alleged defect. [GN]
LIBERTY MUTUAL: Court Allows Bid to Dismiss in Wellness Suit
------------------------------------------------------------
Judge Patti B. Saris of the U.S. District Court for the District of
Massachusetts allows the Defendant's motion to dismiss in the
lawsuit captioned WELLNESS MEDICAL CENTER LLC, Plaintiff v. LIBERTY
MUTUAL INSURANCE COMPANY, Defendant, Case No. 1:23-cv-10960-PBS (D.
Mass.).
The case involves a due process challenge to the preclusive effect
of a state court judgment approving a class action settlement.
Plaintiff Wellness Medical Center LLC seeks a declaratory judgment
that it is not bound by a 2015 class settlement from an an Illinois
state court. It alleges the Illinois judgment was rendered without
providing Wellness adequate representation or the opportunity to
object, in violation of its due process rights under the Fourteenth
Amendment.
Defendant Liberty Mutual Insurance Co. moves to dismiss.
Liberty is a mutual insurance company with its principal place of
business in Boston, Massachusetts. On July 25, 2014, Lebanon
Chiropractic Clinic P.C., an Illinois-based medical provider, filed
a class complaint against Liberty in Illinois state court ("Lebanon
court"). Lebanon alleged that Liberty had been underpaying medical
expenses by using a "biased computer software" to re-price
expenses, in violation of Liberty's insurance policies and state
law.
Lebanon sued on behalf of all insured persons and licensed medical
providers, who had submitted medical claims to Liberty and, after
computerized review, received an amount lower than both their
claimed expense and their policy limit. As proposed, the class
included individuals and providers from thirty-eight states,
including Massachusetts.
On Oct. 20, 2014, Lebanon submitted a motion for preliminary
approval of a proposed class settlement. The proposed nationwide
settlement class consisted of three subclasses: the "Policyholder
Subclass," the "Claimant Subclass," and the "Provider Subclass,"
the latter to which Wellness belonged. The proposed settlement
would extinguish class members' claims related to treatment
rendered between June 25, 2004, and Oct. 31, 2014.
In exchange, Liberty agreed to reimburse class members for past
underpayments caused by computerized review. The settlement would
also extinguish class members' "Future Claims" arising from
treatments occurring up to five years after all appeals had been
exhausted. In exchange, Liberty agreed to a no-fault scheme that
would reimburse class members' Future Claims.
After a hearing on Oct. 31, 2014, the Lebanon court issued an order
preliminarily approving class settlement and directing Liberty to
work with the administrator to issue class members notice.
The settlement administrator issued notice of the class action
settlement on Dec. 22, 2014. The notice informed class members that
if they didn't want a payment from this settlement and didn't want
to be legally bound by it, they had to opt out by Jan. 22, 2015.
Alternatively, if class members stayed in the settlement, they
could object to it. Wellness received notice and opted out of the
class.
The notice sent out on Dec. 22, 2014, stated that the court would
conduct a fairness hearing on Feb. 5, 2015, but on February 3, the
court rescheduled the fairness hearing for February 17 and allowed
an individual named Leon Demond to intervene as a named plaintiff
and class representative. On the eve of the fairness hearing,
Liberty "filed a motion for expedited discovery regarding allegedly
improper and misleading communications apparently sent" by counsel
for an objector to potential members of the Provider Subclass in
Massachusetts.
These communications had apparently encouraged Massachusetts
providers to opt out of the Lebanon class by misrepresenting the
settlement and relevant laws. The Lebanon court heard arguments
regarding fairness and these allegedly improper communications at
the February 17 fairness hearing.
A week later, on Feb. 23, 2015, the Lebanon court issued an order
approving the settlement ("Lebanon settlement") and dismissing the
action except as to members of the Provider Subclass in
Massachusetts ("Massachusetts Provider Subgroup" or "Subgroup"). In
doing so, the court expressly found that the absent class members
were provided with legally sufficient notice. The court also
concluded that Lebanon, Demond, and Class Counsel will fairly and
adequately protect the interests of the Settlement Class.
Regarding the Massachusetts Provider Subgroup, the court retained
plenary jurisdiction, including jurisdiction, to address the
validity of Subgroup members' opt-out requests. Ultimately, on
April 1, 2015, the Lebanon court found that the Subgroup members
likely did not make free and unfettered decisions to opt out, and
invalidated all Subgroup members' opt-out requests. The court also
ordered that the administrator send Subgroup members curative
notice by May 1, 2015, with an opt-out deadline of June 1, 2015.
The curative notice did not extend the deadline to object to the
settlement -- Jan. 22, 2015 -- so Subgroup members essentially had
the choice of opting out or agreeing to the settlement's terms.
Wellness did not opt out of the settlement this time. Wellness does
not allege it failed to get the curative notice.
An objector from Washington appealed the trial court's approval of
the Lebanon settlement (Lebanon Chiropractic Clinic, P.C. v.
Liberty Mut. Ins. Co., No. 5-15-0111, 2016 WL 546909 (Ill. App. Ct.
Feb. 9, 2016)). He argued, inter alia, that the trial court had
improperly certified the settlement class and that the settlement
was unfair to Washington providers. The appellate court held that
the trial court "did not abuse its discretion in certifying the
settlement class" and in determining that "the settlement was fair,
reasonable, and adequate." The appellate court also affirmed that
absent class members had received sufficient due process
protections, including fair and adequate representation.
Wellness argues that the Lebanon settlement was rendered without
providing it the constitutionally required opportunity to be heard,
specifically, the right to object. Liberty counters that Wellness
had the same opportunity to object and to be heard that was
afforded to every other putative class member. Alternatively,
Liberty argues that the Court may engage in only "limited
collateral review" at this stage and, accordingly, should give the
Lebanon settlement full faith and credit.
Judge Saris finds that Wellness has not plausibly alleged that the
Lebanon court deprived it of its right to object. The Lebanon
court's initial notice of the class settlement provided Wellness
the option to either object to class settlement or to opt out.
Wellness chose to opt out but argues that any choice taken by
Massachusetts Providers, who had opted out the first time, was a
choice made without any right to object. But the Due Process Clause
does not require courts to allow opt-outs the opportunity to object
to a settlement.
Wellness also argues that after the Lebanon court voided its
initial opt-out, the court did not provide Wellness with another
opportunity to object. But Wellness does not cite caselaw -- and
the Court is aware of none -- holding that curative notice must
give class members a second chance to object, Judge Saris says.
While a second chance to object may be better practice in some
circumstances, in cases in which the certifying court invalidated
opt-outs and issued curative notice to remedy improper ex parte
communications to class members, courts extended only the deadlines
for opting out, not the deadlines to object.
With no authority to support its critiques of the Lebanon court's
curative notice regime, Judge Saris holds that Wellness fails to
plausibly plead a violation of its right to object.
In sum, Judge Saris opines, Wellness has not plausibly alleged that
the Lebanon court deprived it of its due process rights to object
or to receive adequate representation during class proceedings.
Thus, Wellness has failed to state a claim.
For these reasons, Judge Saris holds that Liberty's Motion to
Dismiss is allowed.
A full-text copy of the Court's Memorandum and Order dated Nov. 20,
2023, is available at https://tinyurl.com/yvj2wv5h from
PacerMonitor.com.
MARTINEZ REFINERY: Faces Class Action Suit Over Public Nuisance
---------------------------------------------------------------
KGO reports that flaring in the form of at least two massive flames
could be seen at the Martinez Refining Company for much of
Wednesday evening, Nov. 29.
This comes just a day after a "proposed class action lawsuit" was
filed against the company for past chemical releases during flaring
incidents.
Those from the Martinez refinery said there was an operational
incident that happened around 4:30 p.m. Wednesday, Nov. 29. The
refinery has issued at least two statements saying that the
appropriate agencies were notified, and a community notification
was given. Those from the refinery say, "We have been maintaining
clean combustion during the flaring, and ground-level air
monitoring has shown normal measurements."
We talked with Mitzi Crawford, who lives about a mile away and saw
the flaring.
"Number one, there's a sound kind of a roaring, sound kind of made
my tension like oh -- something's happening -- so I just turned to
look over towards the refinery and there's quite a large fire
that's coming out of there. Concerning for the whole neighborhood,
if people start to wonder and don't know why you have asthma and
all these other things, chronic conditions such as that they don't
investigate it, it's concerning to see some of this," said
Crawford.
This flaring comes just a day after a proposed class action lawsuit
was filed against the Martinez refinery alleging the location has
created a "public nuisance." Citing Thanksgiving of 2022 when 2,024
tons of "spent catalyst" was released into the community leaving
metallic dust on things.
"Is there a belief that it effects anyone's health?" we asked
attorney Blair Kittle.
"I think there is definitely a concern, that is part of what we're
asking for in our suit, to make sure there is medical monitoring. A
regime that people can go and find that out for sure at scale paid
for by the refinery, so there is definitely a concern," said
Kittle.
Mitzi also sent us this cell phone video showing what appears to be
particles in the air. She is concerned about what may have been
released. The Bay Area Air Quality Management District says their
inspectors are investigating the flaring.
In their statement, the Martinez refinery went on to say that
"flares are an essential part of a refinery's integrated,
engineered safety systems, designed to safely manage excess gases
through efficient, effective combustion."
Here is the statement issued by the Martinez Refinery:
"At approximately 4:30 p.m. on Wednesday, November 29, an
operational incident occurred at the Martinez Refinery that led to
flaring that was visible offsite. In following our procedures,
appropriate agencies were notified, and we promptly issued a
Community Warning System Level 1 notification.
We have been maintaining clean combustion during the flaring, and
ground-level air monitoring has shown normal measurements. You are
welcome to view real-time measurements at our fenceline air
monitoring website: http://www.fenceline.org/martinez/.Looking
forward, we expect intermittent flaring to continue while our
employees address these issues.
Flares are an essential part of a refinery's integrated, engineered
safety systems, designed to safely manage excess gases through
efficient, effective combustion. You can learn more about flaring
on our website:
https://martinezrefiningcompany.com/about-flaring/.
We apologize for any inconvenience to our neighbors and thank our
employees for their professional response. As always, we have a
community inquiry phone number you can call 925-313-3777 or
925-313-3601 during off work hours. Thank you."[GN]
MATTERPORT INC: Bid for Summary Judgment in Lynch Suit Granted
--------------------------------------------------------------
Judge William Alsup of the U.S. District Court for the Northern
District of California grants the Defendant's motion for summary
judgment in the lawsuit styled SHAWN LYNCH, Plaintiff v.
MATTERPORT, INC., Defendant, Case No. 3:22-cv-03704-WHA (N.D.
Cal.).
The Defendant moved for summary judgment on the four individual
claims remaining: California's Seller-Assisted Marketing Plan Act,
Sections 17200 and 17500 of the California Business and Professions
Code, and a breach of the implied covenant of good faith and fair
dealing. The Plaintiff in opposition briefing withdrew the first
three claims, and the Defendant in reply briefing argued that the
withdrawn claims should be dismissed with prejudice.
As explained in orders prior, this action is an attempt at a class
action do-over, with the same counsel bringing similar claims on
the same fact pattern but with a different plaintiff. Indeed, all
claims remaining in the present action were litigated in the prior
action through summary judgment.
In light of these circumstances, the Defendant's motion for summary
judgment as to the Plaintiff's withdrawn claims is granted.
As for the implied covenant claim, Judge Alsup notes that it is now
clear the Plaintiff's business, I.C. Progress Inc., should be the
proper plaintiff, and not Shawn Lynch in his individual capacity.
This order will honor the distinction between a corporate entity
and its shareholders, particularly here where the injury claimed is
purely economic. The Plaintiff has not made "a factual showing of
perceptible harm" independent of the alleged lost profits of I.C.
Progress, and so summary judgment is warranted for lack of standing
alone, Judge Alsup points out.
Furthermore, under California law, Judge Alsup opines that the
covenant of good faith and fair dealing cannot be construed to add
an affirmative duty not to compete for the same customers, given
the basic principles relevant to contract law that, with the
exception of insurance contracts, because the covenant is a
contract term, compensation for its breach has almost always been
limited to contract rather than tort remedies.
Regardless, Judge Alsup finds that the Plaintiff has not shown that
such duty exists here, and the covenant cannot impose substantive
duties or limits on the contracting parties beyond those
incorporated in the specific terms of their agreement. The
Defendant's motion for summary judgment as to the breach of implied
covenant claim is granted. Judgment will be entered accordingly.
As explained on the record at the hearing, counsel may seek leave
to amend the pleadings to reflect the proper plaintiff. However, if
counsel does so, Judge Alsup says, they must provide a sworn
statement that I.C. Progress is a corporation in good standing --
both now and in the past -- under the laws of New York. Counsel
must also explain how such amendment would cure the core issues on
the merits discussed and as further expounded on the record.
A full-text copy of the Court's Order dated Nov. 20, 2023, is
available at https://tinyurl.com/7k2chuzh from PacerMonitor.com.
MERCK SHARP: E.D. Pennsylvania Narrows Claims in Baltimore Suit
---------------------------------------------------------------
Judge Gerald Austin McHugh of the U.S. District Court for the
Eastern District of Pennsylvania grants in part and denies in part
the Defendant's Motion to Dismiss the lawsuit entitled MAYOR AND
CITY COUNCIL OF BALTIMORE, on behalf of itself and all others
similarly situated, Plaintiff v. MERCK SHARP & DOHME CORP.,
Defendant, Case No. 2:23-cv-00828-GAM (E.D. Pa.).
Judge McHugh grants the Motion as to the Plaintiff's claims under
the Idaho Consumer Protection Act and Utah Consumer Sales Practices
Act, and dismisses these claims with prejudice.
The Motion is denied as to the Plaintiff's remaining claims.
A full-text copy of the Court's Order dated Nov. 20, 2023, is
available at https://tinyurl.com/mpwaz3nh from PacerMonitor.com.
OSANA CLEANING: Loses Bid for Protective Order in Velasquez Suit
----------------------------------------------------------------
In the lawsuit titled ISMENIA VELASQUEZ on behalf of herself and
others similarly situated, Plaintiff v. OSANA CLEANING CORP., et
al., Defendants, Case No. 2:23-cv-04257-NJC-JMW (E.D.N.Y.),
Magistrate Judge James M. Wicks of the U.S. District Court for the
Eastern District of New York denies in its entirety without
prejudice and with leave to renew the Defendants' motion for a
protective order.
The Plaintiff, Ismenia M. Velasquez, on behalf of herself and all
others similarly situated, brought this class and collective action
on June 9, 2023, against Defendants Osana Cleaning Corp., Global
Commercial Cleaning Services, Inc., Jean Pierre Espejo, an
Individual, and Vanessa Espejo, an Individual, for alleged
violations of the Fair Labor Standards Act, 29 U.S.C. Section 201,
et seq. ("FLSA"), the New York Labor Law Section 190, et seq.
("NYLL"), and the NYLL Wage Theft Prevention Act, NYLL Sections
195, 198. The Plaintiff later discontinued without prejudice her
claims against Defendant Global, only on Nov. 6, 2023.
The latest application before the Court is the Defendants' Motion
for Protective Order Restricting Communications with Putative Class
Members, with the Plaintiff's Response in Opposition.
The Plaintiff was employed as a cleaner by the Defendants, a New
York incorporated cleaning business, from about 2014 until Oct. 7,
2022, where she worked in exchange for wages. Throughout the
entirety of her employment, the Plaintiff alleges she was an
employee of the Defendants within the meaning of the FLSA and the
NYLL Section 190.2. Out of the 364 out of 365 days a year the
Plaintiff worked, she alleged that she was paid only once a month,
was not provided documentation showing her hourly rate or number of
hours worked over a seven-day workweek or over any period, was
never paid for overtime work, was not provided any vacation days
off either paid or unpaid, was only given one holiday per year,
Christmas Day, which was not paid, and was not provided health
insurance benefits or other benefits.
Thus, on June 9, 2023, the Plaintiff consented to be a party to the
FLSA claims in this action pursuant to 29 U.S.C. Section 216(b) and
set forth seven claims against the Defendants for alleged
violations of the FLSA, NYLL, and the NYLL and WPTA. The Defendants
were served a copy of the Summons and Complaint on June 12, 2023.
The Plaintiff brought the First and Second Claims, which include
alleged FLSA Unpaid Overtime Wages and Frequency of Payments
violations, as a collective action pursuant to the FLSA, 29 U.S.C.
Section 216(b), on behalf of themselves and those similarly
situated. Similarly situated employees were defined to include:
"[a]ll employees who worked as cleaners for Global and Osana, at
any time three years prior to the filing of this action through the
entry of judgment in this action (the "FLSA Collective") but
excluding members of supervision and management."
The Plaintiff brought the Third through Seventh Claims, which
include both alleged NYLL Unpaid Overtime Wages, Spread-of-Hours
Pay, Failure to Provide Wage Notice, NYLL WPTA Failure to Provide
Wage Statements violation, and a NYLL Section 191 Frequency of
Payments violation, as a class action pursuant to Rule 23(b)(2) and
(b)(3) of the Federal Rules of Civil Procedure on behalf of a
class. The class was defined to include "All persons who worked as
cleaners for Global and Osana, for the period beginning six years
prior to the filing of this action through the entry of judgment in
this action (the "Rule 23 Class") but excluding members of
supervision and management."
On Aug. 18, 2023, the Defendants filed an answer, denying all
allegations as it relates to the seven claims. On Sept. 29, 2023,
the Defendants filed a Letter Motion for Protective Order
Restricting Communications with Putative Class Members to request:
(i) that communications between the Plaintiff's attorneys and the
Defendant's former and current employees be conducted solely in
writing; (ii) the Defendant's counsel receive copies of those
communications; and (iii) that the Plaintiff must disclose to the
Defendants the names of Defendant Osana's former or current
employees the Plaintiff's counsel contacted regarding this
litigation. The Defendants filed this motion in response to a
voicemail left by the Plaintiff's counsel, on Sept. 20, 2023, for a
current Osana employee, Odelia Lopez ("Ms. Lopez").
The Defendants argue that a protective order is warranted because:
(i) this voicemail was an overt act of solicitation, and thus, the
Plaintiff's counsel violated New York Rules of Professional Conduct
prohibiting same; (ii) the unsolicited calls harm the Defendant's
relationship with its employees; and (iii) the proposed order is
narrowly tailored, making it "unlikely to interfere with 'any
legitimate interest of the Plaintiff or her counsel and will better
enable this Court to fulfil its duty of control over this class
action and the conduct of counsel.'"
In addition, the Defendants requested that they be awarded
attorneys' fees incurred in submitting this letter motion as a
sanction against the Plaintiff's counsel for violation of ethical
rules.
On Oct. 6, 2023, the Plaintiff's counsel filed his response in
opposition, requesting that the motion be denied. The Plaintiff's
counsel argues that the Defendants' motion lacks "any legal or
factual support" because they failed to point to specific findings
that demonstrate the need for limitation and potential interference
with the rights of parties, as required for an order limiting
communications between parties and potential class members.
The Plaintiff's counsel contends the Defendants' allegation that
the counsel violated New York's ethical rules was based on one
voicemail that was used to seek information. In addition, the
Plaintiff's counsel argues that the Defendants' motion "fails to
recognize the type of discovery often required in FLSA cases,"
because, to establish that the proposed collective and class are
"similarly situated for certification and post-certification
purposes," the Plaintiff's counsel "needs to speak to current and
former employees."
Lastly, the Plaintiff's counsel argues the Defendants' contention
that the unsolicited calls harm their relationship with employees
as a reason for requesting a protective order to limit
communications between parties and potential class members is not
supported by the Second Circuit.
Judge Wicks finds that the Defendants have failed to establish that
a single voicemail left for a current Osana employee, requesting to
speak with her to ask "some confidential questions[,]" is
misleading, improper, or otherwise warrants judicial intervention.
First, Judge Wicks says the Plaintiff's counsel has the right to
contact members of the putative class to "obtain information about
the merits of the case" or to "uncover information that may be
relevant to whether or not a class should be certified."
Second, Judge Wicks opines, the Defendants have not presented a
"clear record and specific findings" of abuse under Gulf Oil Co. v.
Bernard, 452 U.S. 89, 101 (1981). Third, the Court is not persuaded
by the Defendants' argument that the Plaintiff's counsel's phone
call "harms Defendants by disrupting the employer-employee
relationship[,]" such that a protective order is necessary.
Fourth, the Defendants argue that the requested protective order
will allow them and the Court to take any appropriate corrective
action should future acts of misleading communications occur.
However, Judge Wicks opines, as articulated in Gulf Oil, "mere
possibility of abuses" do not justify sanctions in the form of a
communications ban that could interfere with the formation of a
class or the prosecution of a class action.
Judge Wicks finds that the Defendant's argument that the "promise
of a confidential conversation" makes the Plaintiff's counsel's
call "primarily for solicitation" is unconvincing. The Judge opines
that the Defendant's arguments are speculative at best--as nowhere
in the voicemail did the Plaintiff's counsel explicitly make an
offer of representation to Ms. Lopez or otherwise promise her that
all communications between her and the Plaintiff's counsel would
remain confidential.
Moreover, it remains undisputed that the Plaintiff's counsel never
actually spoke with Ms. Lopez, and therefore, could not possibly
have solicited her during any oral conversation, Judge Wicks points
out. As such, because the voicemail in this case stands in stark
contrast to voice messages that had sought to have defendants'
employees join the pending lawsuit in Shibetti v. Z Rest., Diner &
Lounge, Inc., No. 18-CV-856 (BMC), 2021 WL 1738315, at *7 (E.D.N.Y.
May 3, 2021), and that the Court declines to accept the Defendants'
counsel's "speculation of improper conduct" by the Plaintiff's
counsel, the Court finds the Plaintiff's counsel did not violate
New York's ethical rules on solicitation of clients.
Although the voicemail at issue is not a solicitation, and a
protective order "is unwarranted on the current record," Judge
Wicks reminds the Plaintiff's counsel "the protection of class
members from misleading communications from the parties or their
counsel is an important interest that courts will vindicate," and
warned that "future communications with continued use of suggestive
turns of phrase," such as "confidential questions," will be
"subject to judicial scrutiny," in the event the Plaintiff's
counsel later attempts to abuse the type of communication
permissible at this pre-certification stage of the case.
Finally, the Court notes that it is not preventing the Defendants
from communicating with unrepresented prospective class and/or
collective action members, so long as those communications comply
with New York's ethical rules and Gulf Oil.
For these foregoing reasons, the Court rules that the Defendants'
motion for a protective order is denied without prejudice and with
leave to renew.
A full-text copy of the Court's Memorandum Order dated Nov. 20,
2023, is available at https://tinyurl.com/5a9tt4h4 from
PacerMonitor.com.
Mitchell Schley -- mschley@schleylaw.com -- Law Offices of Mitchell
Schley, LLC, in East Brunswick, New Jersey, Attorney for the
Plaintiff.
Eddie A. Pantiliat -- eap@hgplaw.com -- Hymson Goldstein Pantiliat
& Lohr, PLLC, in Scottsdale, Arizona, Attorney for Defendants Osana
Cleaning Corp., Jean Pierre Espejo, and Vanessa Espejo.
PENNSYLVANIA: Court Grants Partial Bid to Dismiss Houser v. Faubert
-------------------------------------------------------------------
Judge Mark A. Kearney of the U.S. District Court for the Eastern
District of Pennsylvania grants the Defendants' partial motion to
dismiss in the lawsuit styled DARIEN HOUSER v. TODD FAUBERT, JOSHUA
WRIGHT, SHANNON BEAN and JAMIE SORBER, Defendants, Case No.
2:22-cv-02730-MAK (E.D. Pa.).
The incarcerated Darien Houser pro se sues SCI-Phoenix Unit Manager
Todd Faubert, Corrections Counselor Joshua Wright, employment
Coordinator Shannon Bean, and Superintendent Jamie Sorber for
violating his First Amendment rights by denying him a job at
SCI-Phoenix in retaliation for objecting during a March 2020 class
action fairness hearing related to conditions of confinement. He
sues the state actors in their individual and official capacities.
The state actors move to partially dismiss arguing Mr. Houser
cannot proceed on his claims against them in their official
capacities and has now twice failed to plead Coordinator Bean's and
Superintendent Sorber's personal involvement in alleged
retaliation.
The Court agrees with the four state actors. The Court dismisses
the official capacity claims under the Eleventh Amendment. The
Court dismisses the claims against Coordinator Bean and
Superintendent Sorber. Mr. Houser will now proceed on his First
Amendment retaliation claim against Unit Manager Faubert and
Counselor Wright.
Construing the incarcerated Darien Houser's allegations and
attached documents, it appears the Commonwealth housed Mr. Houser
at SCI-Greene in 2019. Mr. Houser had a job in the Religious
Services department at SCI-Greene in October 2019.
The Department of Corrections transferred Mr. Houser to SCI-Phoenix
in January 2020. He sought employment at SCI-Phoenix in the
Religious Services department like the employment he had at
SCI-Greene. An unidentified staff member responded SCI Phoenix did
not then--Jan. 27, 2020--have an employment position for chaplaincy
workers in the unit to which Mr. Houser is assigned.
Mr. Houser testified at the fairness hearing on a proposed class
action settlement on March 16, 2020, pending in the Reid case
(Anthony Reid, et al. v. Wetzel, et al., No. 18-176 (M.D. Pa.)). He
testified SCI-Greene offers no religious services and no employment
opportunities for capital case prisoners, unidentified persons
denied him employment for months, and Unit Manager Faubert and
Counselor Wright told him there are no available jobs at
SCI-Phoenix even though jobs are available. The Facility hired,
fired, and rehired other incarcerated persons on the same block and
unit while he sought employment at SCI-Phoenix.
The state actors then began retaliating against the Plaintiff. The
state actors denied him employment and the SCI-Phoenix medical
department assigned him to sedentary work from March 27, 2020,
through Sept. 14, 2021.
Mr. Houser alleges the four state actors working at SCI-Phoenix
denied him employment at SCI-Phoenix in retaliation for exercising
his First Amendment right to testify at the fairness hearing in the
Reid class action and for filing grievances.
The Commonwealth now moves to dismiss part of the claims against
the four state actors arguing: (1) the Eleventh Amendment bars Mr.
Houser's official capacity claims and the Defendants are not
"persons" subject to suit under section 1983; and (2) Mr. Hauser
fails to allege the personal involvement of Superintendent Sorber
and Coordinator Bean sufficient to maintain claims against them in
their individual capacity.
The Commonwealth does not move to dismiss the individual capacity
claims against Unit Manager Faubert and Counselor Wright. Mr.
Houser did not respond to the Commonwealth's Motion to dismiss.
The Court earlier dismissed claims against the Defendants in their
official capacities with prejudice. The Court now dismisses claims
against Superintendent Sorber and Coordinator Bean in their
individual capacities.
Judge Kearney opines that Mr. Houser's allegations about
Superintendent Sorber and Coordinator Bean are deficient, and their
inaction are not constitutional violations.
Accordingly, the Court grants the four state actors' partial motion
to dismiss. Mr. Houser already dismissed his claims against them in
their official capacity. Mr. Houser now twice failed to plead the
individual involvement of Coordinator Bean or Superintendent Sorber
in the alleged First Amendment retaliation.
The Court dismisses the Plaintiff's claims against the state actors
in their official capacity with prejudice. The Court dismisses
Coordinator Bean and Superintendent Sorber without prejudice. The
Court will now proceed into discovery on the First Amendment
retaliation claims against Manager Faubert and Coordinator Wright.
A full-text copy of the Court's Memorandum dated Nov. 20, 2023, is
available at https://tinyurl.com/26z7ach7 from PacerMonitor.com.
RESCARE INC: Dispositional Document in Diaz Suit Due on March 29
----------------------------------------------------------------
In the lawsuit titled SUSAN DIAZ, Plaintiff v. RESCARE INC., et
al., Defendants, Case No. 1:21-cv-00095-JLT-EPG (E.D. Cal.), the
U.S. District Court for the Eastern District of California directs
the parties to file an appropriate dispositional document by no
later than March 29, 2024.
On Jan. 21, 2021, the Defendants removed this wrongful termination
action from state court. Thereafter, the parties reached a global
settlement concerning this case and two others. On May 15, 2023,
the Court granted a stay of the proceedings and directed the
parties to file a dispositional document, or status report
regarding settlement, by no later than Nov. 17, 2023.
Now before the Court is the parties' joint status report, which
states as follows:
This is one of three separate lawsuits Plaintiff has pending
against defendants. The parties previously mediated their
disputes on a global basis related to one of Plaintiff's
other pending cases and settlement was reached. A hearing
for final approval of the class action settlements in case
No. CGC-20-582448 is set for hearing on January 4. 2024.
In light of the parties' joint status report, the Court rules as
follows:
1. This case remains stayed;
2. The parties will file an appropriate dispositional
document by no later than March 29, 2024;
3. Alternatively, if the parties are unable to file an
appropriate dispositional document, they will file a status
report by no later than March 29, 2024, updating the Court
on the status of the settlement and providing a specific
date by which they anticipate filing a dispositional
document.
A full-text copy of the Court's Order dated Nov. 20, 2023, is
available at https://tinyurl.com/5a5xaz6b from PacerMonitor.com.
SAFECO INSURANCE: Gilbert Suit Removed to N.D. Ohio
---------------------------------------------------
The case styled as Brian Fennell, individually and on behalf of all
others similarly situated v. Safeco Insurance Company of Illinois,
Liberty Mutual Insurance Company, Case No. CV23985828 was removed
from Cuyahoga County Court of Common Pleas, to the U.S. District
Court for the Central District of California on Oct. 30, 2023.
The District Court Clerk assigned Case No. 1:23-cv-02125-SO to the
proceeding.
The nature of suit is stated as Insurance for Insurance Contract.
Safeco Insurance Company of Illinois -- https://www.safeco.com/ --
provides auto, home, renters, condo, boat, car, motorcycle, and
umbrella insurance services. Safeco Insurance serves customers in
the United States.[BN]
The Plaintiff is represented by:
Frank A. Bartela, Esq.
Patrick J. Perotti. Esq.
DWORKEN & BERNSTEIN-PAINESVILLE
60 South Park Place
Painesville, OH 44077
Phone: (440) 352-3391
Email: fbartela@dworkenlaw.com
pperotti@dworkenlaw.com
- and -
James A. DeRoche
GARSON JOHNSON
2nd Floor Van Roy Building
2900 Detroit Avenue
Cleveland, OH 44113-2710
Phone: (216) 696-9330
Fax: (216) 696-8558
Email: jderoche@garson.com
The Defendants are represented by:
James T. Morsch, Esq.
SAUL EWING - CHICAGO
161 N. Clark Street, Ste. 4200
Chicago, IL 60601
Phone: (312) 876-7866
Fax: (312) 876-0288
- and -
Stephanie L. Denker, Esq.
SAUL EWING - NEW YORK
1270 Avenue of the Americas, Ste. 2800
New York, NY 10020
Phone: (212) 980-7214
- and -
William M. Harter, Esq.
Kaitlin L. Madigan, Esq.
FROST BROWN TODD - COLUMBUS
10 West Broad Street, Ste. 2300
Columbus, OH 43215
Phone: (614) 559-7226
Fax: (614) 464-1737
Email: wharter@fbtlaw.com
kmadigan@fbtlaw.com
SAINT EDWARDS UNIVERSITY: Bishop Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Saint Edwards
University, Inc. The case is styled as Cedric Bishop, on behalf of
himself and all other persons similarly situated v. Saint Edwards
University, Inc., Case No. 1:23-cv-10441-KPF (S.D.N.Y., Nov. 29,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
St. Edward's University -- https://www.stedwards.edu/ -- is a
private, Catholic university in Austin, Texas.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
SCISSORTAIL ENERGY: Filing for Class Cert. Bid Due May 23, 2024
---------------------------------------------------------------
In the class action lawsuit captioned as MARVIN B. DINSMORE, et
al., on behalf of themselves and all others similarly situated, v.
SCISSORTAIL ENERGY, LLC., Case No. 6:22-cv-00352-GLJ (E.D. Okla.),
the Hon. Judge Gerald L. Jackson entered an amended scheduling
order as follows:
1. Documents previously produced by parties April 16,
2024
shall be deemed authenticated except as
to those objected to:
2. Class Certification Motion filed with all May 23, 2024
supporting evidence, including expert
disclosures:
3. Class Certification Response filed with July 22, 2024
all supporting evidence, including expert
disclosures:
4. Class Certification Reply filed with any Aug. 21, 2024
rebuttal evidence, including rebuttal
expert disclosures, if any:
5. Class Certification Discovery Cutoff: Aug. 21, 2024
6. Evidentiary hearing on Plaintiff's Motion Sept. 24,
2024
for Class Certification.
ScissorTail constructs, owns, and operates natural gas and energy
pipelines in central and eastern Oklahoma.
A copy of the Court's order dated Nov. 27, 2023 is available from
PacerMonitor.com at https://bit.ly/46INtpV at no extra charge.[CC]
SCL GRILL LLC: Stroude Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against SCL Grill, LLC. The
case is styled as Colette Stroude, on behalf of herself and all
others similarly situated v. SCL Grill, LLC, Case No. 1:23-cv-08705
(E.D.N.Y., Nov. 27, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Scl Grill is located at 1 Christie Pl, Scarsdale, New York.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
SEAWORLD PARKS: Burns Suit Seeks to Certify Minority Persons Class
------------------------------------------------------------------
In the class action lawsuit captioned as QUINTON BURNS, et al., v.
SEAWORLD PARKS & ENTERTAINMENT, INC., et al, Case No.
2:22-cv-02941-WB (E.D. Pa.), the Plaintiffs ask the Court to enter
an order certifying a class of:
"All minority persons who, since July 27, 2018, either directly
or
as third-party beneficiaries, entered into contracts with
SeaWorld
by purchasing admission tickets into Sesame Place
Philadelphia."
SeaWorld Parks is an American theme park and entertainment company
headquartered in Orlando, Florida.
A copy of the the Plaintiffs' motion dated Nov. 27, 2023 is
available from PacerMonitor.com at https://bit.ly/3Grpy3K at no
extra charge.[CC]
The Plaintiffs are represented by:
Ronald E. Richardson, Esq., Esq.
William H. Murphy, Jr., Esq.
Andrew K. O'Connell, Esq.
MURPHY, FALCON & MURPHY
1 South Street, 30th Floor
Baltimore, MD 21202
Telephone: (410) 539-6500
Facsimile: (410) 539-6599
E-mail: billy.murphy@murphyfalcon.com
andrew.murphy@murphyfalcon.com
malcolm.murphy@murphyfalcon.com
ronald.murphy@murphyfalcon.com
- and -
Mart Harris, Esq.
THE TRIAL LAW FIRM, LLC
Fort Pitt Commons
455 Fort Pitt Boulevard, Suite 220
Pittsburgh, PA 15219
Telephone: (412) 588 0030
Facsimile: (412) 265 6505
E-mail: mh@tlawf.com
- and -
Jason Duncan, Esq.
2001 N. Front Street
Harrisburg, PA 17102
Telephone: (717) 232-1886
Facsimile: (717) 232-4189
E-mail: jaybdunc@gmail.com
SEAWORLD PARKS: Coppel Class Cert Reply Extended to Jan. 24, 2024
-----------------------------------------------------------------
In the class action lawsuit captioned as Coppel, et al., v.
SeaWorld Parks & Entertainment, Inc. et al., Case No. 3:21-cv-01430
(S.D. Cal., Filed Aug. 10, 2021), the Hon. Judge Robert S. Huie
entered an order on motion for extension of time to file response /
reply:
-- The Court grants in part Plaintiffs ex parte motion for
extension
of time.
-- The deadline for Plaintiffs to file any reply in support of
their motion to certify class is extended to Jan. 24, 2024.
-- The Court denies as premature the request to file a surreply
opposing class certification.
-- The Court denies without prejudice Plaintiffs ex parte motion
for
extension of time in all other respects.
-- Discovery related motions and motions to amend a scheduling
order
are to be directed to the U.S. Magistrate Judge pursuant to
CivLR
72.1.
The suit alleges violation of the Employee Retirement Income
Security Act.
SeaWorld Parks is an American theme park and entertainment company
headquartered in Orlando, Florida.[CC]
SEAWORLD PARKS: Plaintiffs Seek More Time to File Class Cert Bid
----------------------------------------------------------------
In the class action lawsuit captioned as FERNANDO COPPEL, PABLO
MARTINEZ, TYLER MITCHELL, JUDITH URIOSTEGUI, ELIZABETH USSELMAN,
individually and as a representative of a Putative Class of
Participants and Beneficiaries, on behalf of the SWBG, LLC 401(K)
PLAN (FKA SEAWORLD PARKS AND ENTERTAINMENT 401(K) PLAN, v. SEAWORLD
PARKS & ENTERTAINMENT, INC. ("SEAWORLD"); SWBG ORLANDO CORPORATE
OPERATIONS GROUP, LLC ("SWBG"); BOARD OF DIRECTORS OF SEAWORLD AND
SWBG, INVESTMENT COMMITTEE OF SEAWORLD PARKS & ENTERTAINMENT 401(K)
PLAN / SWBG, LLC 401(K) PLAN; MARK G. SWANSON (CEO); ELIZABETH
GULACSY (CFO); and DOES 1 through 50 Case No. 3:21-cv-01430-RSH-DDL
(S.D. Cal.), the Plaintiffs ask the Court to enter an order
approving their request to extend the time to file their Reply in
Support of their Motion for Class Certification, to January 12,
2024, or a date thereafter that is convenient for the Court.
The Plaintiffs filed their Motion for Class Certification, on
November 1, 2023. The Defendants filed their Opposition to
Plaintiffs' Motion for Class Certification, on November 22, 2023.
The Defendants filed their Notice of Errata regarding their
Opposition to Plaintiffs’ Motion for Class Certification, on
November 24, 2023.
SeaWorld is an American theme park and entertainment company
headquartered in Orlando, Florida.
A copy of the the Plaintiffs' motion dated Nov. 27, 2023 is
available from PacerMonitor.com at https://bit.ly/3uMdmYT at no
extra charge.[CC]
The Plaintiffs are represented by:
Christina A. Humphrey, Esq.
Robert N. Fisher, Esq.
CHRISTINA HUMPHREY LAW, P.C.
1117 State Street
Santa Barbara, CA 93101
Telephone: (805) 618-2924
Facsimile: (805) 618-2939
E-mail: christina@chumphreylaw.com
rob@chumphreylaw.com
- and -
James A. Clark, Esq.
Renee P. Ortega, Esq.
TOWER LEGAL GROUP, P.C.
11335 Gold Express Drive, Ste. 105
Gold River, CA 95670
Telephone: (916) 361-6009
Facsimile: (916) 361-6019
E-mail: james.clark@towerlegalgroup.com
renee.parras@towerlegalgroup.com
- and -
Paul J. Sharman, Esq.
THE SHARMAN LAW FIRM LLC
11175 Cicero Drive, Suite 100
Alpharetta, GA 30022
Telephone: (678) 242-5297
Facsimile: 678) 802-2129
E-mail: paul@sharman-law.com
SECURITY CREDIT: Neiman Files FDCPA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Security Credit
Services, LLC. The case is styled as Margulia Neiman, individually
and on behalf of all others similarly situated v. Security Credit
Services, LLC, Case No. 7:23-cv-10425-NSR (S.D.N.Y., Nov. 29,
2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Security Credit Services, LLC --
https://www.equiproinvestments.com/ -- are a receivables management
firm that assists our consumers with respect and dignity.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
SIMM ASSOCIATES: Greene Files FDCPA Suit in S.D. California
-----------------------------------------------------------
A class action lawsuit has been filed against Simm Associates, Inc.
The case is styled as Donna Greene, individually and on behalf of
all others similarly situated v. Simm Associates, Inc., Case No.
3:23-cv-02176-LL-BGS (S.D. Cal., Nov. 28, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
SIMM Associates -- https://www.simmassociates.com/ -- is a family
owned and operated financial services business assisting clients as
accounts receivable management specialists.[BN]
The Plaintiff is represented by:
Jonathan Aaron Stieglitz, Esq.
LAW OFFICES OF JONATHAN STIEGLITZ
11845 W. Olympic Blvd., Suite 800
Los Angeles, CA 90064
Phone: (323) 979-2063
Fax: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
TIKTOK INC: Court Issues Ruling on Third Party Funding Agreements
-----------------------------------------------------------------
Eduardo Silva de Freitas, Xandra Kramer and Jos Hoevenaars, members
of the Vici project Affordable Access to Justice, disclosed that
Third Party Litigation Funding (TPLF) has been one of the key
topics of discussion in European civil litigation over the past
years, and has been the topic of earlier posts on this forum.
Especially in the international practice of collective actions,
TPLF has gained popularity for its ability to provide the financial
means needed for these typically complex and very costly
procedures. The Netherlands is a jurisdiction generally considered
one of the frontrunners in having a well-developed framework for
collective actions and settlements, particularly since the Mass
Damage Settlement in Collective Actions Act (WAMCA) became
applicable on 1 January 2020. A recent report commissioned by the
Dutch Ministry of Justice and Security found that most collective
actions seeking damages brought under the (WAMCA) have an
international dimension, and that all of these claims for damages
are brought with the help of TPLF.
This blogpost provides an update of the latest developments in the
Dutch collective action field focusing on a recent interim judgment
by the Amsterdam District Court in a collective action against
TikTok c.s in which the Dutch court assessed the admissibility of
the claimant organisations based, among other criteria, on their
funding agreements. This is the second interim judgment in this
case, following the first one year ago which dealt with the
question of international jurisdiction. After a brief recap of the
case and an overview of the WAMCA rules on TPLF, we will discuss
how the court assessed the question of compatibility of the TPLF
agreements with such rules. Also in view of the EU Representative
Action Directive for consumers, which became applicable on 25 June
2023, and ongoing discussions on TPLF in Europe, developments in
one of the Member States in this area are of interest.
Recap
In the summer of 2021, three Dutch representative foundations --
the Foundation for Market Information Research (Stichting Onderzoek
Marktinformatie, SOMI), the Foundation Take Back Your Privacy
(TBYP) and the Foundation on Mass Damage and Consumers (Stichting
Massaschade en Consument, SMC) -- initiated a collective action
against, in total, seven TikTok entities, including parent company
Bytedance Ltd. The claims concern the alleged infringement of
privacy rights of children (all foundations) and adults and
children (Foundation on Mass Damage and Consumers). The claims
include, inter alia, the compensation of (im)material damages, the
destruction of unlawfully obtained personal data, and the claimants
request the court to order that an effective system is implemented
for age registration, parental permission and control, and measures
to ensure that TikTok complies with the Code of Conduct of the
Dutch Media Act and the GDPR.
In a its second interim judgment in this case, rendered on 25
October 2023, the District Court of Amsterdam assessed the
admissibility of the three representative organisations (DC
Amsterdam, 25 October 2023, ECLI:NL:RBAMS:2023:6694; in Dutch), and
deemed SOMI admissible and conditioned the admissibility of TBYP
and SMC on amendments to their TPLF agreements. This judgment
follows the District Court's acceptance of international
jurisdiction in this collective action in its first interim
judgment, which we discussed on this blog in an earlier blogpost.
TPLF under the WAMCA
The idea of TPLF refers essentially to the practice of financing
litigation in which the funder has no direct involvement with the
underlying claim, as explained by Adrian Cordina in an earlier post
on this blog. The basic TPLF contract entails the funder agreeing
to bear the costs of litigation on a non-recourse basis in exchange
for a share of the proceeds of the claim. Collective actions tend
to attract this type of funding for two reasons. Firstly, these
claims are expensive for several reasons such as the need for
specialised legal expertise and complex evidence gathering, thereby
creating a need for external financing through TPLF. Secondly,
considering that these proceedings seek damages for mass harm, the
potential return on investment for a funder can be substantial.
This makes it an appealing prospect for funders who may be
interested in investing with the possibility of sharing in these
proceeds.
The WAMCA has put in place some rules on the practice of TPLF in
the context of collective actions. These rules are inserted in the
revised Article 3:305a Dutch Civil Code (DCC), which concerns the
admissibility requirements for representative organisations to file
such actions. Among other requirements, these rules stipulate that
claimant organisations must provide evidence of their financial
capacity to pursue the action while maintaining adequate control
over the proceedings. This provision aims to ensure the
enforceability of potential adverse cost orders and to prevent
conflicts of interest between the funding entity and the claimant
organisation (Tzankova and Kramer, 2021). This requirement can be
waived if the collective action pursues an "idealistic" public
interest and does not seek damages or only a very low amount,
commonly referred to as the "light" WAMCA regime (Article 305a,
paragraph 6, DCC). However, foll0wing the implementation of the
Representative Actions Directive (Directive (EU) 2020/1828, or RAD)
in the Netherlands, the stipulations related to financial capacity
and procedural control persist when the collective action derives
its legal basis from any of the EU legislative instruments
enumerated in Annex I of the RAD, irrespectively of whether or not
the collective action pursues an "idealistic" public interest.
Additionally, within the framework of the Dutch implementation of
the RAD, it is stipulated that the financing for the collective
action cannot come from a funder who is in competition with the
defendant against whom the action is being pursued (Article 3:305a,
paragraph 2, paragraph f, DCC).
Additional rules on TPLF can also be found in the Dutch Claim Code,
a soft-law instrument governing the work of ad hoc foundations in
collective proceedings. The latest version of the Claim Code (2019)
mandates organisations to scrutinise both the capitalisation and
reputation of the litigation funder. The Claim Code also stipulates
that TPLF agreements should adopt Dutch contract law as the
governing law and designate the Netherlands as the forum for
resolving potential disputes. Most importantly, it emphasises that
the control of the litigation should remain exclusively with the
claimant organisation. Moreover, it prohibits the funder from
withdrawing funding prior to the issuance of a first instance
judgment. This Claim Code is non-binding, but plays an important
role in Dutch practice.
The District Court's assessment of the TPLF agreements
In the most recent interim judgment, the District Court of
Amsterdam assessed the admissibility requirements concerning
financial capacity and control over the proceedings for each of the
organisations separately. In its first interim judgment the court
had determined that, with a view to assessing the admissibility of
each of the claimants and also with a view to the appointment of an
exclusive representative, the financing agreement the claimants had
reached with their respective funders should be submitted to the
court.
After the review of these agreements all three organisations were
deemed to have sufficient resources and expertise to conduct the
proceedings since they are all backed by TPLF agreements (SMC and
TBYP) and donation endowments (SOMI). However, the court ordered
amendments to the TPLF agreements of both SMC and TBYP due to
concerns related to control over the proceedings. The District
Court also acknowledged concerns about potential excessiveness in
compensation, particularly if calculated as a fixed percentage
irrespective of awarded amounts and the number of eligible class
members. Notably, the court considered the proportionality of
compensation to the invested amount and emphasised the need to
align it with the potential risks faced by litigation funders.
In this sense, the court indicated that the acceptable percentage
of compensation for litigation funders should be contingent on the
awarded amount and the expected number of class members. While a
maximum of 25% accepted in case law (for example, in the Vattenfall
case, DC Amsterdam 25 October 2023) could play a role, the court
indicates it will use a five-times-investment maximum as a more
practical approach. The court stressed the importance of adjusting
compensation rates based on damages to be assessed, ensuring
appropriate remuneration for funders without exceeding the
established maximum.
In light of these considerations, the District Court also outlined
preconditions for future approval of settlement agreements,
limiting the amount deducted from the compensation of the class
members to a percentage that will be established by the court and
capping litigation funder fees.
Assessment of each organisation's control over the proceedings
The three claimant organisations have entered into different
financial agreements to pursue this collective action. SOMI is
financed by donations from another organisation, which does not
require repayment of the amount invested. The District Court
assessed the independence of SOMI's decision-making, given that the
sole shareholder of the donating organisation is also the director
of SOMI. The court concluded that appropriate safeguards are in
place, as the donation agreement contains clauses stipulating that
this person should refrain from taking any decisions in case of a
conflict of interest. It was also stressed that the donating
organisation declared to be independent from SOMI's directors and
lawyers, as well as from TikTok.
On the other hand, TBYP and SMC have entered into TPLF agreements.
The District Court highlighted some provisions of TPLF agreement of
TBYF that were deemed dubious under the WAMCA. One clause required
that no actions could be taken that could potentially harm the
funder's interests, with an exception made if such actions were
legally necessary to protect the interests of the class members.
The court decided that this clause compromised TBYP's independence
in controlling the claim. Another clause stipulated that TBYP could
not make, accept, or reject an offer of partial or full settlement
in the proceedings without first receiving advice from the lawyers
that such a step was reasonable. The court viewed this clause as
further compromising TBYP's control over the proceedings.
Similarly, the District Court had reservations about some clauses
in the TPLF agreement SMC had entered into. One clause stipulated
that if the lawyers were dismissed, the funder could inform SMC of
the replacing lawyers they would like to appoint, subject to SMC's
approval. Also, if the funder wanted to dismiss the lawyers and SMC
disagreed, the dispute should be resolved by arbitration. The court
decided that this gave power to the funder to disproportionately
influence the proceedings. Another clause stipulated that if the
chance of winning significantly decreased, the parties would need
to discuss whether to continue or terminate the agreement. The
court rejected this clause, stressing that terminating the TPLF
agreement prematurely is unacceptable. Finally, the agreement
contained a clause allowing the funder to transfer its rights,
benefits, and obligations under the agreement, even without SMC's
consent. The court also rejected this clause, emphasising that SMC
should not be involuntarily associated with another funder.
In view of all these considerations the District Court decided that
these provisions in the TPLF agreements could compromise the
independence of TBYP and SMC from their respective litigation
funders. In principle, the presence of these contractual provisions
should lead to TBYP and SMC being deemed inadmissible. However,
considering the overall intent of the TPLF agreements and the
novelty of such agreements being reviewed, the court has given TBYP
and SMC the opportunity to amend their TPLF agreements to remove
the contentious clauses.
Outlook
In its decision, the District Court repeatedly stressed that it was
'entering new territory' with this detailed assessment of the
funding agreements. This is also reflected in the careful
consideration the court has for the various, potentially
problematic, aspects of TPLF in collective actions and the fact
that it chooses to formulate a number of preconditions that it
intends to apply when determining what will count as reasonable
compensation in the event of future approval of a settlement
agreement. It thereby forms the second act in this TikTok case, but
also the firsts steps in clarifying some uncertainties in the
practical implementation of the WAMCA.
The challenges collective actions and TPLF face are not unique to
The Netherlands, as for instance also the PACCAR judgment by the UK
Supreme Court 0f earlier this year showed (see also this recent
blogpost by Demarco and Olivares-Caminal on OBLB). In this ruling,
the Supreme Court considered whether Litigation Funding Agreements
(LFAs) should be regarded as Damages-Based Agreements (DBAs) within
the context of 'claims management services'. The court concluded
that the natural meaning of 'claims management services' in the
Compensation Act 2006 (CA 2006) encompassed LFAs. The court
dismissed arguments suggesting a narrower interpretation of 'claims
management services', stating it would be contrary to the CA 2006's
purpose. As a result of this ruling, these agreements could
potentially be deemed unenforceable if they fail to adhere to the
regulations applicable to DBAs.
This second interim judgment in the TikTok case is a novelty in the
Dutch practice of collective actions in terms of the detailed
review of funding agreements. While generally being a collective
action-friendly jurisdiction, this judgment and other (interim)
judgments under the WAMCA so far, show that bringing international
collective actions for damages is a long road, or what some may
consider to be an uphill battle. The rather stringent requirements
of the WAMCA are subject to rigorous judicial review, which has
also resulted in the inadmissibility of claimant organisations and
their funding agreements in other cases (notably, in the Airbus
case, DC The Hague 20 September 2023, ECLI:NL:RBDHA:2023:14036).
Almost four years after the WAMCA became applicable no final
judgment rewarding damage claims has been rendered yet. But in the
TikTok case the claimant organisations got a second chance. This
open trial-and-error approach is perhaps the only way to further
shape the collective action practice both in The Neterlands and
other European countries.[GN]
UNITED PARCEL: Court Grants Bid for Summary Judgment in Baker Suit
------------------------------------------------------------------
Judge Thomas O. Rice of the U.S. District Court for the Eastern
District of Washington grants the Defendant's motion for summary
judgment in the lawsuit titled JUSTIN BAKER, Plaintiff v. UNITED
PARCEL SERVICE INC., Defendant, Case No. 2:21-cv-00162-TOR (E.D.
Wash.).
Before the Court is the Defendant's Motion for Summary Judgment and
Motion to Strike. These matters were submitted for consideration
with oral argument on Nov. 16, 2023. The Defendant's Motion to
Strike is denied as moot.
The matter arises out of alleged violations of the Uniform Service
Employment and Reemployment Rights Act 38 U.S.C. Section 4311(b)
("USERRA") and the Washington Law Against Discrimination RCW
Section 49.60.210 ("WLAD") based on alleged retaliation for filing
a class action lawsuit (2:21-CV-0114-TOR) for harassment and
discrimination in the workplace. The Plaintiff has been employed
with Defendant United Parcel Service in Spokane as a package
delivery driver since 2007. He is also a member of the U.S. Army,
serving in active duty from 2010 to 2013, and has since joined the
U.S. Army Reserves.
The Plaintiff alleges that he has experienced a pattern of
hostility in the workplace at the hands of his managers. His first
allegation of discriminatory behavior stems from his return from a
two-week Army Reserve related training, and asserts the conduct
occurred from late February until early March 2020. He alleged that
upon his return and after he had worked the full day, Lori Olson,
the Defendant's general manager, called him twice after working
hours and threatened him regarding his return to work.
The Plaintiff stayed home for the following three days without pay.
The Defendant asserts that the Plaintiff was sent home without pay
for three days because he had returned from his Army Reserve
training in Japan, and the company had pandemic related health and
safety concerns. He alleges that on March 19, 2020, after he
returned from the unpaid leave, he was called into a meeting with
managers Olson and Robert Fischer, and Kevin Cruz, a union
representative, where he was informed that a termination
investigation had been opened.
On March 19, 2020, the Plaintiff filed a USERRA complaint against
the Defendant based on his treatment by management. He also filed a
grievance on March 20, 2020. The Department of Labor ("DOL")
notified Olson about the USERRA complaint on March 23, 2020. DOL
ultimately found the Plaintiff's allegation to be credible and
determined that the Defendant was not in compliance with USERRA.
A meeting was held on March 31, 2020, where management, the
Plaintiff, and a union representative discussed the grievance
filed. The Plaintiff asserts that during that meeting, hostile
language was directed at him, and he left with the impression that
his termination investigation was still ongoing. He alleges that he
filed another grievance on July 31, 2020, after being threatened
with punishment for not bringing his military identification to
work in order to access Fairchild Airforce base.
In February 2021, the Plaintiff notified the Defendant of the
underlying class action lawsuit (2:21-CV-0114-TOR), which he filed
on March 16, 2021. He asserts that thereafter, employees approached
him about the lawsuit during the workday. Manager Fisher asserted
that conversations had taken place about the lawsuit among
management, including Curtis Wentler, the Health and Safety Manager
for the Northwest District. Wentler oversees the 63 centers across
the Northwest and works from an office located in Pacific,
Washington. The Defendant disputes that Wentler had any knowledge
of the Plaintiff on a personal level, including his military
status, the lawsuit, and underlying complaints lodged against the
Defendant during the relevant period.
On March 22, 2021, the Plaintiff suffered a back injury while on
the job. As part of the National Master United Parcel Service
Agreement, the collective bargaining agreement, ("CBA"), he filed a
request for a temporary alternative work ("TAW"), which would allow
him to continue working within the bounds of his injury. He
returned to work on March 23, 2021, but his condition deteriorated,
and he went to the doctor on March 29, 2021. Per the direction of
the doctor, the Plaintiff returned to work on March 30, 2021, and
was placed on TAW performing light duty, which amounted to
paperwork in the breakroom.
The Plaintiff and the Defendant dispute what occurred while he was
working under the TAW. The Plaintiff asserts that a company health
advisor informed managers in Spokane that he was "struggling with
staying in his restrictions while performing driving activities."
According to the Plaintiff, he never reviewed light duty works
options with his managers despite the recommendations of the health
advisor. Instead, he argues, managers conspired to have Wentler
remove him from TAW and place him on "lost time."
The Plaintiff alleges that on April 1, 2021, he was called into the
Fisher's office for a meeting with shop steward Andrew Bagley.
According to Plaintiff, during this meeting Fisher informed him
that there was no light duty work available for him to perform, and
thus, he would be placed on disability without pay for three days
until he could be placed on L&I. While placed on "lost time," the
Plaintiff received 60% pay until released back to full time work.
The Defendant agrees with the assertion that the Plaintiff was
injured while working, which resulted in neck and back pain, and
the fact that a doctor placed a light work restriction on him. The
Defendant argues that the Plaintiff was moved from light work that
required him to drive, to office work, because turning to look for
traffic caused him pain. According to the Defendant, a company
health advisor informed managers that the Plaintiff had pain in his
neck and that they should review light duty option with him.
Manager Fisher replied that Manager Mandy Hopper had developed a
TAW safety training course that they would have the Plaintiff
complete in order to stay within the restriction.
The Defendant argues that the Plaintiff was reassigned to complete
the TAW safety training course consisting of paperwork, writing,
and answering questions on March 31, 2021. However, according to
the Defendant, on April 1, 2021, the Plaintiff informed Manager
Hopper that completing the safety training course was causing him
pain. The Defendant alleges that, upon Hopper's report to Wentler
that completing the light work tasks assigned caused the Plaintiff
pain, Wentler, and notably not any local managers, removed the
Plaintiff from TAW and moved him to "lost time" on April 1, 2021.
There is also a dispute between parties about the guarantee of the
TAW. The Plaintiff argues that employees are guaranteed by practice
a full 30 days of TAW. The Defendant argues that employees may
receive up to 29 days of TAW, but that there is no guarantee that
the employee will receive the entire benefit. Further, the
Defendant alleges that in order to receive the TAW, light work that
does not cause further injury must be available.
The Parties do not agree on the specifics of how the Plaintiff's
return to work took place. The Defendant alleges that the Plaintiff
attempted to return to work on May 6, 2021, and was initially
denied by Wentler because he did not receive a release note from
the doctor, who originally restricted his work. According to the
Defendant, once the company received clarification that the
Plaintiff's treating physician had changed and he was, therefore,
released to work on Friday, May 21, 2021, the Plaintiff was
permitted to return to work on Monday, May 24, 2021.
The Plaintiff disputes this characterization and claims that Fisher
denied his return to work on May 6, 2021. Similarly, the Plaintiff
asserts that it was Fisher, rather than Wentler, who refused to
allow him to return to work without a doctor's note from his
treating physician on May 21, 2021.
During the relevant period, Wentler stated that he had no knowledge
of the class action lawsuit while he was making decisions about the
Plaintiff's leave status. Additionally, it appears the conversation
among managers about the Plaintiff's class action lawsuit took
place after he had been removed from TAW.
The Plaintiff brought the present action on May 14, 2021, and filed
an amended complaint on July 1, 2021, alleging that the Defendant
violated his rights under the USERRA and WLAD by retaliating
against him for bringing the underlying punitive class action
lawsuit.
The Defendant filed this motion for summary judgment on Aug. 4,
2023, asserting that the Plaintiff did not offer proof that
Wentler, the ultimate decisionmaker, possessed the requisite
knowledge of the punitive class action lawsuit when he removed the
Plaintiff from TAW, and even if he had, that it was done for a
non-discriminatory reason. The Defendant also moves for summary
judgment with respect to the award of damage scheme the Plaintiff
posits under the collective bargaining agreement. The Plaintiff
filed a response in opposition.
Additionally, the Defendant filed a motion to strike certain
declarations attached to the Plaintiff's response in opposition to
summary judgment. The Plaintiff filed a response in opposition.
The Court finds that the Plaintiff has not produced sufficient
evidence to suggest that Wentler, the decisionmaker, had knowledge
of his class action lawsuit.
Judge Rice holds that summary judgment is proper because the
Plaintiff offers no evidence to support his contention that
Wentler, the ultimate decisionmaker, knew of his underlying lawsuit
when the decision was made to remove him from TAW.
Taking the available information in the light most favorable to the
Plaintiff, the Court has nothing but conclusory allegations to rely
upon in rendering a decision, Judge Rice says. The Plaintiff offers
no information that any of the USERRA complaints, managers view
that he was a "troublemaker," or knowledge of the class action
lawsuit actually made their way to Wentler, the decisionmaker. The
Plaintiff's allegations are pure speculation. Judge Rice adds that
the Plaintiff has not shown that any of the Spokane managers took
an adverse employment decision against him based on his lawsuit.
The Plaintiff's theory that Fisher was ultimately pulling the
strings to have him removed from TAW and denied a return to work
fails for the same reasons, Judge Rice opines. The Plaintiff relies
upon the fact that Fisher "knew of the class action lawsuit when
Mr. Baker was removed from TAW," but his deposition testimony
suggests that he did not learn of the lawsuit until after he had
been placed on "lost time," Judge Rice explains.
Even when viewed in the light most favorable to the Plaintiff, the
Court cannot find that Fisher influenced any decision made because
he had a personal issue with the Plaintiff.
Judge Rice also finds that the Plaintiff has failed to produce a
casual link between his removal from the TAW and initial denial of
return to work, and his filing of the underlying class action
lawsuit. The Plaintiff offers his proximity in time and his
disparate treatment regarding TAW arguments to support his WLAD
claim. But he does not support these arguments with a link from the
filing of his class action lawsuit to retaliation carried out by
Wentler such that it could be said he had actual knowledge or
"suspected" he had filed a lawsuit. For the same reasons as stated,
Judge Rice holds that the Plaintiff does not make a prima facia
case as it relates to his WLAD claim, and therefore, summary
judgment is proper.
As the Court has determined that summary judgment is proper for the
substantive claims, it declines to reach the merits of the
Plaintiff's argument for damages.
Accordingly, Judge Rice rules that the Defendant's Motion for
Summary Judgment is granted. The Defendant's Motion to Strike is
denied as moot. The deadlines, hearings and trial date are vacated.
The District Court Executive is directed to enter this Order, enter
Judgment, furnish copies to counsel, and close the file.
A full-text copy of the Court's Order dated Nov. 20, 2023, is
available at https://tinyurl.com/46k2dyp9 from PacerMonitor.com.
Thomas G. Jarrard -- tjarrard@att.net -- Law Office of Thomas G.
Jarrard, appeared on behalf of the Plaintiff.
Naomi Beer -- beern@gtlaw.com -- Greenberg Traurig, P.A., and Jacob
M. Knutson, Jeffers, Danielson, Sonn & Aylward, P.S., appeared on
behalf of the Defendant.
UNITED STATES: Court Approves Class Settlement in Campos v. SSA
---------------------------------------------------------------
Magistrate Judge Vera M. Scanlon of the U.S. District Court for the
Eastern District of New York approves the settlement agreement in
the lawsuit styled LAQUANA CAMPOS, on behalf of herself and her
minor child, K.C.; TOSHA ADAM; NORMAN MARSH; and BETTI
RODNYANSKAYA, individually and on behalf of all persons similarly
situated, Plaintiffs v. KILOLO KIJAKAZI, Acting Commissioner of
Social Security, Defendant, Case No. 1:21-cv-05143-VMS (E.D.N.Y.).
Plaintiffs LaQuana Campos (on behalf of herself and her minor
child, K.C.), Tosha Adams, Norman Marsh, and Betti Rodnyanskaya
(together, "Named Plaintiffs"), brought a Motion for Certification
of Settlement Class and Final Approval of Class Action on behalf of
themselves and a class of all current and future recipients of
Supplemental Security Income ("SSI") ("Class Members") (together,
"Plaintiffs"). With the consent of Defendant Kilolo Kijakazi in her
capacity as the Acting Commissioner of the Social Security
Administration (the "SSA" or the "Agency"), the Plaintiffs ask for
this Court's final approval of the Parties' proposed Stipulation of
Settlement (the "Settlement Agreement" or the "Agreement"), and
related relief set forth in Named Plaintiffs' Memorandum of Law in
Support of a Motion for Certification of Settlement Class and Final
Approval of Class Action.
The Parties ask that the Court: (1) certify a settlement class
consisting of: (i) all individuals with a March-September 2020
Manual SSI Overpayment ("SSI Overpayment"); (ii) all individuals
with an SSI Overpayment debt incurred for any months between March
2020 and September 2020 that was identified through automated
processes; and (iii) all individuals with an SSI Overpayment debt
incurred for any months between October 2020 and April 2023; (2)
appoint the New York Legal Assistance Group ("NYLAG"), Justice in
Aging, and Arnold & Porter Kaye Scholer LLP ("Arnold & Porter ") as
class counsel ("Class Counsel") and Named Plaintiffs as class
representatives ("Class Representatives"); (3) approve the Parties'
Settlement Agreement without requiring a pre-approval notice being
provided to Class Members; and (4) grant Named Plaintiffs $268,000
in attorneys' fees and $2,702 in costs to Class Counsel, as
stipulated in the Settlement Agreement.
Under the Settlement Agreement, the Defendant agrees to waive all
March-September 2020 Manual SSI Overpayments with very limited
exceptions. These waivers will occur no later than 18 months after
the final settlement date. The Agency will not require individual
Class Members to take specific actions to benefit from these
waivers, and the SSA will return any amounts previously "recouped"
by beneficiaries where permitted by law, regulation and Agency
policy.
All Class Members, who were assessed an SSI Overpayment incurred
between October 2020 and April 2023 (the end of the COVID-19
national emergency), and all Class Members, who were assessed an
SSI Overpayment incurred from March 2020 to September 2020 and
identified through automated processes (as opposed to manually
processed overpayments) will receive relief in the form of new
administrative guidance followed by a notice to be sent to each
Class Member.
Having considered all submissions and arguments before it, the
Court finds that the Settlement Agreement is fair, reasonable and
adequate. For the reasons discussed in this Memorandum, the Court
approves the Settlement Agreement without requiring a pre-approval
fair hearing or notice to absent Class Members, appoints Class
Counsel as requested, and grants the Named Plaintiffs' request for
attorneys' fees and costs to Class Counsel other than the pro hac
vice fees.
The Federal SSI program provides income support to low-income
individuals of ages 65 or older or who are blind or disabled. To
benefit from SSI, these individuals must meet strict income and
resource limits each month, and they must promptly report any
changes in their finances to the SSA. Unreported income change may
prompt the SSA to recover SSI benefits that the Agency believes it
overpaid to those recipients.
In March 2020, following the Government's National Emergency
Proclamation in response to the first outbreak of the COVID-19
pandemic, the SSA closed its field offices, impeding SSI
recipients' ability to report income changes to the SSA. In August
2020, recognizing the difficulties created by the ongoing pandemic,
the SSA issued an interim final rule entitled Waiver of Recovery of
Certain Overpayment Debts Accruing during the COVID-19 Pandemic
Period, Aug. 27, 2020 (the "Rule" or the "IFR").
In their Complaint, the Named Plaintiffs contend that while the IFR
intended to bring relief to SSI recipients, the Rule contains
numerous arbitrary limitations on when a recipient qualifies for
the streamlined waiver and that the arbitrary limitations on the
IFR's applicability have resulted in many SSI recipients being
assessed overpayments and, thus, experiencing unfair and improper
benefit reductions, causing substantial harm.
Following nearly two years of litigation and negotiations, the
Parties filed their proposed Settlement Agreement with the Court.
Under the terms of the Agreement, the Defendant agrees to waive all
March-September 2020 Manual SSI Overpayments without requiring any
individual to submit a separate request for waiver and agrees to
provide such relief no later than 18 months after the time to file
or notice any appeal from this Court's Final Approval Order expires
or the date of final affirmance of this Final Approval Order in any
appeals therefrom, whichever is later. To the extent an individual
already repaid all or part of a waived Overpayment to the Agency,
the amount repaid will be deemed an underpayment.
Under the Settlement Agreement, the Parties also agree to class
certification under Fed. R. Civ. P. 23(b)(2) or 23(b)(3) of a class
that includes all individuals (i) with a March September 2020
Manual SSI Overpayment; (ii) with an SSI Overpayment debt incurred
between March 2020 and September 2020 identified through automated
processes; or (iii) with an SSI overpayment debt incurred between
October 2020 and April 2023.
The Defendant agrees to waive all Manual SSI Overpayment incurred
by Class Members between March and September 2020 without requiring
that these Class Members take specific actions to benefit from the
waiver. The SSA will issue any amounts it previously "recouped"
from beneficiaries where permitted by law, regulation and Agency
policy. All Class Members, who were assessed an SSI Overpayment
incurred between October 2020 and April 2023 (the end of the
COVID-19 national emergency), and all Class Members who were
assessed an SSI Overpayment incurred from March 2020 to September
2020 and identified through automated processes (as opposed to
manually processed overpayments) will receive relief in the form of
new administrative guidance followed by a notice to be sent to each
Class Member.
The Parties agree that it is in the best interests of the Class
Members to seek final Court approval for the Agreement pursuant to
Fed. R. Civ. P. 23 without prior notice to the Class Members.
Judge Scanlon holds that certification of the proposed settlement
class under Rule 23(b)(2) is appropriate. The Court certifies the
proposed class as (i) all individuals with a March-September 2020
Manual SSI Overpayment; and (ii) all individuals with an SSI
Overpayment debt incurred for any months between March 2020 and
September 2020 that was identified through automated processes; and
(iii) all individuals with an SSI Overpayment debt incurred for any
months between October 2020 and April 2023.
The Settlement Agreement provides for $268,000 in attorneys' fees
and $2,702 in costs to Class Counsel to satisfy Plaintiffs' claim
for reasonable attorneys' fees and costs under the Equal Access to
Justice Act ("EAJA"). The Court finds the attorneys' fees request
to be reasonable and approves the Plaintiffs' $268,000 stipulated
attorneys' fees.
Class Counsel also requests $2,702 in costs, which covers the
filing fee, service of process, couriers, duplicating, and pro hac
vice admissions. The Court agrees that these costs are reasonable
other than Justice in Aging attorneys' pro hac vice fees. Judge
Scanlon says attorneys are responsible for the costs of their own
admissibility before the Court such that it is unreasonable to ask
the Defendant to pay these fees. The $500 of pro hac vice admission
fees are not approved but the remaining $2,202 in costs is
approved.
A full-text copy of the Court's Memorandum dated Nov. 20, 2023, is
available at https://tinyurl.com/2s4bsu8a from PacerMonitor.com.
VANGUARD CHESTER: Bids to Dismiss in Funds Litigation OK'd in Part
------------------------------------------------------------------
In the lawsuit captioned IN RE VANGUARD CHESTER FUNDS LITIGATION,
Case No. 2:22-cv-00955-JFM (E.D. Pa.), Judge John F. Murphy of the
U.S. District Court for the Eastern District of Pennsylvania issued
a Memorandum granting in part and denying in part the Defendants'
motions to dismiss.
"If a fiduciary considers two options to accomplish the same
objective, and option A carries certain drawbacks that option B
does not, could choosing option A breach a fiduciary duty? Maybe.
It could depend on the process followed by those who evaluated the
options and made the choice," Judge Murphy writes in the
Memorandum.
In December 2020, Vanguard changed a key aspect of its popular
retirement-oriented mutual funds to make them more attractive to
potential investors, and decided to do so using option A. The
change benefited most of the current investors. But not everyone.
Some investors suffered surprise capital gains taxes because of the
change. Those investors sued Vanguard, its corporate officers, its
statutory trust, and independent trustees to the trust. They think
Vanguard could have (and should have) done things differently
(i.e., option B) when deciding to reconfigure its retirement funds,
which in turn would have avoided unexpected tax consequences.
Vanguard helps people invest money using mutual funds. Investors
become shareholders in Vanguard's mutual funds in exchange for
their money. Vanguard's financial professionals manage the money.
They use the money to buy stocks, bonds, or other securities on
behalf of the investors.
Twenty years ago, Vanguard created mutual funds "based on a target
retirement year" ("Target Date Funds"). Each Target Date Fund is a
series of a trust under Delaware law. The Target Date Funds are
managed by a group of independent trustees and Vanguard officers.
And Vanguard itself "provides 'virtually all' of the 'corporate
management, administrative, and distribution services' for the
trust."
Vanguard manages the Target Date Funds' investment portfolios to
become less risky as a selected retirement date approaches by
opting for safer investments. That is by design. The target-date
structure is popular among investors saving for retirement. When
retirement approaches, the Target Date Funds' portfolios "glide"
toward safer investments. Because retirees are usually in a lower
marginal tax bracket upon retirement, they pay less tax on the
money liquidated from the Target Date Fund investments.
For each target retirement date, Vanguard offered two "tiers" of
its Target Date Funds. One tier accepted investments from investors
(e.g., retirement plans) with at least $100 million in assets
("Institutional Funds"). The other tier accepted investments from
investors that could not reach the $100 million threshold ("Retail
Funds"). Each tier had the same trustees, officers, target
retirement date, investment strategy, and proportion of shares in
the same underlying index funds. But Vanguard structured the tiers
as separate funds within its trust.
Vanguard's Institutional and Retail Funds had another key
difference outside of minimum investment amount: expense ratios.
Expense ratios are an alternative to charging investors for
individual transactions. The Institutional Fund had a lesser
expense ratio than the Retail Fund.
In December 2020, Vanguard altered the specs of its Target Date
Funds. Vanguard lowered the minimum investment amount to access its
Institutional Funds from $100 million to only $5 million. Lowering
the amount meant investors previously unable to reach the $100
million threshold -- for example, "mid-size retirement plans" --
could now take advantage of a smaller expense ratio. Investors
seized the "no-brainer opportunity" to move their money and benefit
from the reduced expense ratio.
For retirement plan managers previously unable to meet the $100
million threshold, Vanguard's decision offered "significantly
reduced fees, with no material downside." As many as "8,500 401(k)
plans with approximately 3.2 million participants" left Vanguard's
Retail Funds and opted for its Institutional Funds.
To leave the Retail Funds, investors needed their shares of the
mutual funds redeemed. Redeeming shares pays investors "for the
value of their shares." Mutual funds typically "keep sufficient
cash on hand" for redemptions. In most years, Target Date Funds
safely satisfy redemptions without selling assets. Not in December
2020. Faced with an "elephant stampede" of redemption requests, the
Retail Funds had no choice but to sell off an unprecedented amount
of assets to satisfy all the share redemptions. The redemption of
about 490 million shares outpaced the number of shares issued,
resulting in an incurred "deficit of over $11 billion."
The unprecedented sale of assets generated capital gains. And
Congress requires funds (like the Retail Funds) to distribute
capital gains to shareholders. Because assets are sold so
infrequently to redeem shares, shareholders usually do not incur
substantial capital gains. Not after the December 2020 decision.
The mass share redemption caused a sharp spike in capital gains
distributions. The Retail Fund distributed capital gains to the
shareholders that did not leave the fund.
For most shareholders that remained in the Retail Fund, receiving
capital gains distributions came without consequence. This is
because investors in the Target Date Funds can opt to hold their
fund shares in tax-advantaged accounts. The tax-advantaged accounts
-- for example, a 401(k) -- automatically reinvest capital gains
distributions without having to pay taxes on them. Many
shareholders had the capital gains distributions reinvested without
second thought.
But not all shareholders in the Retail Fund used a tax-advantaged
account. The Retail Fund shareholders that did not elect for a
tax-advantaged account faced unexpected, sizable capital gains tax
liabilities. Some Retail Fund shareholders had to sell off other
assets to cover the surprise tax bills. Other shareholders faced
IRS and state law penalties for failing to pay the amount owed in
2021 capital gains taxes. And at least some Vanguard employees knew
that these types of tax liabilities would spawn from their decision
to lower the minimum investment amount.
Just nine months after changing the Institutional Funds' investment
minimum, Vanguard scrapped the change by merging Retail and
Institutional Funds. The merger would be accomplished through a
"'tax-free exchange' of Retail Fund shares for Institutional Fund
shares." And the merger gave shareholders a uniform expense ratio.
Vanguard's reversal followed the actions of Fidelity -- one of its
biggest competitors. In January 2021 -- just one month after the
"elephant stampede" -- Fidelity lowered its own institutional fund
minimum investment amount by lowering the threshold for its
institutional share class within the same fund, as opposed to
moving money from one fund into another. Unlike Vanguard, the
structuring of Fidelity's decision avoided imposing tax liabilities
on some of its investors.
Though Vanguard merged its Retail and Institutional Funds, some
investors felt like the damage had already been done. The group of
Retail Fund investors blindsided with taxes now sue Vanguard, its
officers, the company's trust, and its trustees for the harm they
suffered.
The proposed class of Plaintiffs in this case ("Investors") meet
two criteria: (i) they invested their money in the Retail Funds
using taxable accounts (or elected not to reinvest capital gains
distributions in a tax-advantaged account), and (ii) they received
a 2021 capital gains distribution from the Retail Funds. Their main
claim is that Vanguard, its corporate officers, the trust
comprising the Target Date Funds ("Delaware Trust"), and the
Delaware Trust's trustees ("Independent Trustees") breached their
fiduciary duties of care and loyalty by failing to consider the tax
consequences of their decision to lower the Institutional Funds'
minimum investment amount.
The Investors allege that, in the time leading up to the December
2020 change, the Defendants ignored the ramifications for those who
did not use tax-advantaged accounts, failed to consider suitable
alternatives for changing its Target Date Funds, knew of and
considered the consequences for Investors, but disregarded this
impact to remain "competitive in the marketplace."
Judge Murphy notes that the Investors bring other claims outside of
breach of fiduciary duty, including aiding and abetting a breach of
fiduciary duty brought in the alternative (Count II), gross
negligence (Count III), breach of an implied covenant of good faith
and fair dealing (Count IV), unjust enrichment brought in the
alternative (Count V), and various states' consumer protection
statute violations (Counts VI-IX).
The Investors' complaint faces two motions to dismiss. The first
comes from the Independent Trustees. The second comes from
Vanguard, its Delaware Trust, and individual officers of Vanguard
(together, "Vanguard Defendants"). The motions share the same
fundamental arguments. The motions challenge the Investors'
standing and the sufficiency of their complaint.
The Independent Trustees refers to the following individuals:
Emerson U. Fullwood, Amy Gutmann, F. Joseph Loughrey, Mark
Loughridge, Scott C. Malpass, Deanna Mulligan, Andre F. Perold,
Sarah Bloom Raskin, and Peter F. Volanakis. During the alleged
events, the Delaware Trust had one more trustee -- Mortimer J.
Buckley -- who also served as a Vanguard corporate officer. The
Vanguard Defendants refers to the following parties: Vanguard,
Inc., the Delaware Trust, Mortimer J. Buckley, John Bendl,
Christine M. Buchanan, and John E. Schadl. Where necessary, the
Court will refer to the company, Delaware Trust, and Vanguard's
individual officers separately.
Judge Murphy finds that the Investors plausibly alleged a
non-speculative injury in fact. Here, the Investors allege enough
facts to show they suffered an economic injury the decision to
lower the Institutional Funds' investment threshold. They met their
burden of establishing standing at the pleadings stage, Judge
Murphy points out.
Judge Murphy also finds that the Investors plausibly alleged that
the Independent Trustees and Vanguard's officers breached their
duty of care. But the Investors' claim fails against Vanguard
because there are no plausible allegations of a fiduciary or
confidential relationship.
The Investors' gross negligence cause of action is dismissed
because it is duplicative of their fiduciary duty claim, Judge
Murphy holds. The Investors' breach of covenant of good faith and
fair dealing claim will pass into discovery, and survives the
motions to dismiss.
Judge Murphy also holds that most of the Investors' state consumer
protection law causes of action will proceed to discovery. The
Investors' consumer protection law causes of action may proceed
against the Defendants under Colorado, Massachusetts, and Illinois
law.
The Court concludes the following:
-- The Independent Trustees' and Vanguard Defendants' motions
for leave to file reply briefs are granted;
-- The Defendants' motion to dismiss is granted in part and
denied in part with respect to Count I (breach of fiduciary
duty). Only Investors' breach of fiduciary duty claims
against Independent Trustees and Vanguard's officers based
on the duty of care move to discovery;
-- The Defendants' motion to dismiss is granted without
prejudice with respect to the Investors' aiding and
abetting cause of action (Count II) against Vanguard;
-- The Defendants' motion to dismiss is granted without
prejudice with respect to the Investors' gross negligence
cause of action (Count III);
-- The Defendants' motion to dismiss is denied with respect to
Investors' breach of the covenant of good faith and fair
dealing claim against Independent Trustees (Count IV);
-- The Investors' unjust enrichment claim (Count V) is
dismissed without prejudice because it is pled in the
alternative, and Investors have a plausible remedy at law;
and
-- The Investors' causes of action under Colorado (Count VII),
Massachusetts (Count VII), and Illinois (Count IX) state
consumer protection laws proceed to discovery. But the
Court grants the Defendants' motion to dismiss their
California cause of action (Count VI) without prejudice.
A full-text copy of the Court's Memorandum dated Nov. 20, 2023, is
available at https://tinyurl.com/ypr53sp9 from PacerMonitor.com.
[*] Child & Family Services Agencies in Canada Sued Over Adoptions
------------------------------------------------------------------
Rachel Ferstl, writing for CBC News, reports that two years ago, a
proposed national class action lawsuit filed against the Salvation
Army alleged the Canadian charity took advantage of unmarried
soon-to-be mothers who lived in the organization's maternity homes
-- and allegedly coerced them into placing their newborns up for
adoption.
Now, a Manitoba lawsuit filed by the Salvation Army alleges that in
that province, it's some child and family services agencies who
bear responsibility for any coercion during adoptions.
The Governing Council of The Salvation Army in Canada -- the
charity's legal entity -- is suing multiple child and family
services agencies, which it says oversaw adoptions in Manitoba and
"owed a duty of care" to the pregnant women who lived at the
homes.
Those agencies failed to make sure adoptions were "safe and free
from coercion," according to a statement of claim filed Nov. 20 in
the Manitoba Court of King's Bench.
The proposed B.C. class action, which includes class members who
lived in the homes across the country starting in 1960 until they
stopped operating, alleges the women faced physical, sexual,
emotional and psychological abuse, and their newborns were taken
away from them without consent.
"The Salvation Army was not involved in the adoption
decision-making process and did not induce mothers to place
newborns for adoption. The CFSs were involved in the
decision-making process," the Manitoba statement of claim says.
It claims the agencies breached their duty of care and their
negligence caused any alleged loss to the class members.
Effort to reduce culpability: law prof
The suit names as a defendant "Child and Family Services ABC" —
which it defines as "agencies licensed by the Crown," including
"those historically known as 'Children's Aid Societies,' the
particular identities of which are not currently known to the
Salvation Army."
However, it says those agencies, along with the other defendants
named, "oversaw the adoption process for newborns."
The other defendants named are Child and Family Services of Central
Manitoba and Jewish Child and Family Service -- private agencies
with Crown mandates to provide child and welfare services in
central Manitoba and Winnipeg, respectively.
As part of the Manitoba lawsuit, the Salvation Army is claiming its
costs in defending itself in the B.C. class action, as well as
"contribution and indemnity" for any amount it's found liable for
in that class action, along with other damages.
A spokesperson for Manitoba's general CFS authority, which is
responsible for CFS of Central Manitoba and Jewish Child and Family
Service, said those agencies haven't been served with the lawsuit.
Manitoba's CFS agency said it cannot comment on the lawsuit as it
is before the courts.
None of these allegations have been proven in court.
Suzanne Chiodo, a York University assistant professor at Osgoode
Hall Law School who studies class actions, said by suing the
Manitoba CFS agencies, the Salvation Army is trying to reduce
culpability in its involvement in the adoption process.
"The Salvation Army is saying, 'Look, we just gave these mothers a
home,'" she told CBC on Dec. 1.
"They're turning around and [saying], 'These family and child
services agencies are actually at fault when you're talking about
the adoption.'"
That's a common approach for organizations, Chiodo said, if they
think other groups that aren't named in a class action bear some
responsibility.
"If someone gets sued, and they think that someone else is either
partially or wholly responsible for the wrong, then they can sue
that other organization or person and say, 'You owe us if we're
found at fault in this class action.'"
Homes meant to isolate, dehumanize: claim
The Salvation Army operated the homes for unmarried mothers from
about 1940 to 1989, the Manitoba statement of claim says.
Two were run in Winnipeg -- Bethany Home, located at 205 Arlington
St. and Lindenview Residence at 205 Booth Dr.
A third, Grace Haven, operated in Steinbach.
They existed during a time "when the prevailing social norms and
values . . . led young unmarried pregnant women, often at the
direction of their families, to seek safe and confidential options
for their personal care," the claim says.
But a court document filed as part of the proposed class action
says the homes were meant to indoctrinate, dehumanize and isolate
unmarried mothers and seize their newborns from them.
"These institutions were founded and operated on the basis that
unmarried mothers were not capable of or not suited to raising
children," it says.
The representative plaintiff of the class action, which was
proposed on Oct. 7, 2021, in B.C.'s Supreme Court, moved to the
Maywood Home in Vancouver in 1983 after she got pregnant at age 15
following a sexual assault, that statement of claim says.
She stayed at the maternity home until she was about eight months
pregnant before returning to live with her parents, it alleges.
When the woman's child was born, she and the baby were immediately
separated, the claim says.
Salvation Army denies allegations
The proposed class action says she and other class members were
also subjected to psychological manipulation where staff instilled
"feelings of guilt and inadequacy over her pregnancy and impending
motherhood."
In a February response to the proposed class action, the Salvation
Army denied the allegations against it.
John Murray, a spokesperson for the Salvation Army said the charity
"was part of a system which provided care for unmarried mothers as
a direct response to a societal need."
Chiodo said "it's quite likely" the Salvation Army will launch
similar lawsuits in other provinces where it believes child and
family service agencies were also in charge of adoptions.
The Salvation Army filed a similar lawsuit on Nov. 20 against
children's aid societies in B.C. over alleged negligence at the
maternity homes, according to an online news story. [GN]
Asbestos Litigation
ASBESTOS UPDATE: Court Rules Merck Responsible in Talc Lawsuits
---------------------------------------------------------------
Travis Rodgers, writing for Asbestos.com, reports that Bayer AG was
absolved of liability in certain cancer-related lawsuits. The cases
concern talc-based foot powders that the company acquired from
Merck & Co. in a more than $14 billion cash deal nearly a decade
ago.
Delaware's highest court clarified that Merck is responsible for
claims that predate Bayer's acquisition. Lawsuits claim talc used
in products like Dr. Scholl's caused cancer.
Talc-based products have been linked in recent years to
asbestos-related illnesses such as ovarian cancer, mesothelioma and
asbestosis. Merck, Bayer and Johnson & Johnson have faced lawsuits
claiming talc-based products caused plaintiffs' cancer.
Merck had claimed its liability ended on Oct. 1, 2021, seven years
after selling its Claritin, Coppertone and Dr. Scholl's product
lines to Bayer. In September 2021 Merck sued Bayer for breach of
contract for failing to assume liability for the product claims,
according to court records.
Shortly after the deal closed, both companies began being named in
lawsuits, according to a Delaware Chancery Court memorandum. In
April 2023, a Delaware Chancery Court judge ruled that the 2021
date was for different indemnification obligations for Merck, but
didn't include the talc lawsuits.
In November 2023, the Delaware Supreme Court unanimously upheld the
lower court's ruling that the original owner of the talc products
– Merck & Co. – is responsible for the lawsuits over sales of
the products before the deal. Bayer told Reuters it was "pleased"
with the latest decision, while Merck didn't comment.
ASBESTOS UPDATE: J&J Weighs 3rd Bankruptcy Attempt on Talc Claims
-----------------------------------------------------------------
Michelle Whitmer, writing for Asbestos.com, reports that Johnson &
Johnson may be filing for bankruptcy for a third time in an attempt
to address its talc liabilities, this time under a different
corporate structure. The pharmaceutical giant has twice failed at
"Texas Two-Step" filings to resolve mass tort litigation against
it.
Roughly 51,000 lawsuits filed against Johnson & Johnson claim the
company's talc-based products caused them to develop cancer.
Johnson & Johnson's two Chapter 11 bankruptcy filings through its
subsidiary, LTL Management, were both denied by a New Jersey judge
who found LTL did not qualify for bankruptcy protection because it
was not in financial distress.
The Texas Two-Step strategy is when a company facing lawsuits tries
to transfer its legal liabilities to a subsidiary and then initiate
bankruptcy proceedings for the subsidiary. This allows the company
to separate its liabilities from its assets and protects the main
company.
J&J is now considering moving the talc cases to Texas in a bid for
a potential third bankruptcy filing, according to the Wall Street
Journal. The news outlet cited unnamed sources "familiar with the
company's planning." Bloomberg earlier reported the same
information.
In order to move the filing to a Texas court, Johnson & Johnson
would have to involve one of its existing business units located
there to establish a venue, according to the news outlet. On a
recent earnings call, Johnson & Johnson said that ahead of any
bankruptcy filing it would put a settlement offer to a vote among
ovarian cancer patients who claim Johnson's Baby Powder caused
their illness, the WSJ reports.
Johnson & Johnson did not publicly comment on the potential venue
change or future bankruptcy proceedings.
A 2018 investigative report by Reuters found Johnson & Johnson knew
of asbestos contamination in its talc products tracing back
decades. Tests from different labs found asbestos in J&J's talc
from 1971 to the early 2000s, but the company failed to report the
findings to the U.S. Food & Drug Administration.
In 2019, the FDA found traces of asbestos in a bottle of Johnson's
Baby Powder, prompting a recall of 33,000 bottles. J&J stopped
selling products containing talc in the United States and Canada
the following year but continued to sell them worldwide. It halted
all sales of talc-containing products this year, but will continue
to make cornstarch-based baby powder.
Talc is one of the softest minerals on Earth and is used in many
products, including paints, ceramics and construction materials.
It's also an ingredient in personal hygiene products. Asbestos
naturally occurs in many talc deposits and can contaminate the
mineral. Asbestos is toxic and can accumulate in the body and cause
diseases such as ovarian cancer, lung cancer and mesothelioma.
People who were exposed to asbestos-contaminated talc and have been
diagnosed with cancer or other asbestos-related diseases can be
compensated through legal action such as claims with asbestos trust
funds or filing personal injury lawsuits. Asbestos lawyers are
actively taking new cases, while J&J maintains its products are
safe.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***